What legal considerations should LGBTQ+ couples be aware of when starting a family?

LGBTQ+ family law is growing and evolving. Recent changes to law like the Scottish gender recognition certificate reform have led some to ask where are we currently in England and Wales regarding legal developments?

Impact analysis shows the continued pursuit of equality and diversity is increasing LGBTQ rights, but will there be family law updates to follow? 

The legal considerations vary depending on the gender of the couple and for female same sex couples, the legal status of their relationship and how the baby is conceived.

Can two parents of the same sex share parental responsibility? Yes!

Same sex female couples

If a same sex female couple conceives with the assistance of sperm donation or fertility treatment and one of the couple is the birth mother, she will be the child’s legal mother and will have legal parenthood and parental responsibility for the baby. This is the case even if the egg was donated by another woman.

What is the legal status of non-birth mothers?

Whether the non-birth mother will obtain legal parenthood is dependent upon whether the couple are married or in a civil partnership. It also depends on whether the insemination takes place in a UK licensed fertility clinic or not.

Female couples who are married or in a civil partnership

If the couple is married or in a civil partnership and the baby is conceived in a UK licensed fertility clinic or at home, then provided appropriate consents are in place, the non-birth mother will automatically be the second legal parent. They would also be named as such on the birth certificate and have parental responsibility for the child. 

However, if the baby is conceived outside of a UK licensed fertility clinic, the non-birth mother would need to apply to adopt the child to gain legal rights.

Female couples who are not married or in a civil partnership

If the couple is not married or in a civil partnership but their baby is conceived in a UK licensed fertility clinic, the couple will need to complete a form at the clinic for the non-birth mother to be the legal parent and to appear on the birth certificate. 

The non-birth mother can acquire parental responsibility in the following ways:

• By being registered as the child’s parent on the birth certificate as above.

• By entering into a Parental Responsibility Agreement with the birth mother.

• By securing a Parental Responsibility Order from the Court.

• By securing a Child Arrangements Order from the Court which names her as a person with whom the child is to live, in which case the court must also make a Parental Responsibility Order.

Again, if the baby is conceived outside of a UK licensed fertility clinic, the non-birth mother would need to apply to adopt the child to gain legal rights.

Same sex male couples

To start a family, same sex male couples would need to either adopt a child, co-parent a child or enter into a surrogacy arrangement.

Co-parenting

Co-parenting involves two or more people who are not in a relationship conceiving and raising a child together.

In the UK, a child can only legally have two parents. As such, if a man in a same-sex relationship donates his sperm to a single woman with the intention of co-parenting any resulting child, it is likely that he will be treated as the child’s legal father. If named on the birth certificate, he will also have parental responsibility for the child.

Whilst the legal father’s partner may not be able to become a legal father, more than two people can share parental responsibility, so he could secure parental responsibility for the child  by agreement or by court order.

Surrogacy regulations

Surrogacy is defined as when a woman carries a child for intended parents and relinquishes her parental status when the child is born. Surrogacy arrangements are legal in the UK, but the surrogate cannot be paid due to surrogacy regulations. Any agreement the couple reach with the surrogate would not be legally binding upon them. This means that the surrogate could refuse to give the child to the couple once it has been born.

The surrogate is always treated as the legal mother of a child at birth. If the surrogate is married or in a civil partnership, their spouse or partner will be treated as the child’s second parent.

The surrogate would need to sign a parental order within six months of the child’s birth, transferring their parental rights to the couple and at that point the surrogate ceases to be the child’s legal mother.

The government is currently reviewing reforms to surrogacy laws which have been recommended by The Law Commission.

Adoption

A same sex couple (whether male or female) who follow the adoption process automatically secure parental responsibility for the child.

LGBTQ+ family law is evolving in the UK, with recent developments including the adoption and surrogacy law review, so watch this space for more updates.

At Birkett Long, we take our clients' considerations as a priority. Visit our blog next week in which we explore the impact of recent changes in LBGTQ family law and the legal implications of the surrogacy law review.

Melanie Loxley is the Team Leader of the Colchester Divorce and Family team. Based in our Colchester office, Melanie is available for a free 15-minute chat over the phone on 01206 217384.