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Same-sex families: so whose baby is it anyway?

View profile for Karen Johnson
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The number of same-sex families in the UK has been increasing steadily since 1996. The most common status of LGBT families is cohabitation followed by civil partnerships and then marriage. Of those families, 18,000 include dependent children.

Parenthood is no longer confined to parents of the opposite sex. There are many different ways in which a couple may choose to have children together including; surrogacy, artificial insemination (whether through a licensed clinic or not) and adoption.

The manner in which the child is conceived and the legal status of the relationship between the parents can have huge ramifications on the parent’s rights and responsibilities in respect of the child. For example, it is the legal parents that are entitled to be named upon the birth certificate. They are entitled to make applications to the court in the event of disputes concerning the child (a relationship breakdown for example). They are financially responsible for the child. The status of the parent can also impact upon the child’s inheritance rights.

The woman who carries the child and gives birth will always be considered the legal mother unless parental status is removed following a parental order after surrogacy or adoption.

The other legal parent will depend upon how the child was conceived.

If the child was conceived as a result of sexual intercourse, the biological father will be the legal parent.

If the child was conceived following artificial insemination taking place outside a licensed clinic after 6/4/09, then if the mother was married or in a civil partnership and her wife/ civil partner agreed, her wife/civil partner will be the other legal parent. If they were not, or she did not agree, then the biological father would be considered the legal parent.

If the artificial insemination takes place in a licensed clinic, then so long as they sign the correct forms, the birth mother and her partner will be the legal parents.

Male couples seeking to become parents will need to either use a surrogate or adopt. Surrogacy is where a woman agrees to carry and give birth to a child for a couple who will become the child’s parents after birth. Following the birth, the intended parents must apply to the court for a parental order, following which they will be regarded as the child’s legal parents.

Finally, adoption is a formal process which changes the identity of the child’s legal parents.

The laws surrounding same-sex parents are complex. If you are thinking of starting a family, or already have one, and are concerned about where you stand, our team of specialist family lawyers are here to help. For more information, I can be contacted on 01206 217305 or email me karen.johnson@birkettlong.co.uk or alternatively complete our online enquiry form.

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