27 July 2023

LGBTQ+ Families and legal parenthood

By Maria Endall, Family Solicitor, Hayes + Storr.

Whether you conceive through IVF at a licensed or unlicensed clinic, informal ‘at-home’ arrangement, or surrogacy, you need to be sure that the intended parents are the ones with the legal rights and responsibilities for your child.

If you have used any of the above methods of conceiving, or are contemplating them, it is important to know who the legal parents will automatically be if you do nothing, so that you can put the correct legal processes in place to ensure the intended parents have legal parenthood and parental responsibility for your child.

Parental responsibility means having all the legal rights, duties, responsibilities, and obligations that a parent has for the child and the child’s property and being able to make important decisions for the child around things like medical treatment, education and religion, amongst other things.

Although under UK law a child can only have two legal parents, there is no limit on how many people can share parental responsibility. Therefore, a person with parental responsibility must consult anyone else with parental responsibility for the same child before making important decisions.

Who has automatic parental responsibility and legal parenthood when a child is born?

Whoever gives birth to the child will be the child’s legal mother and will automatically have parental responsibility for the child – it doesn’t matter that a sperm donor or donor egg might have been used OR that she is acting as a surrogate for the intended parent(s).

The husband, wife or civil partner of the woman who carries the child will be recognised as the child’s father or second legal parent and will also automatically have parental responsibility for the child – even if they have no biological link to the child and irrespective of any agreement otherwise.

What if these are not the intended legal parents?

If you are in a gay male relationship you might consider either adoption or using a female surrogate. When you adopt a child, the adoption order extinguishes the parental responsibility of the natural parents and confers legal parenthood to you.

If you choose surrogacy, you will need to obtain a parental order after the child has been born in order to acquire legal parenthood and parental responsibility for your child. A parental order will extinguish the legal parenthood and parental responsibility of the surrogate (and her wife, husband or civil partner) and confer legal parenthood and parental responsibility on the intended parent(s) and provide for the child’s birth to be re-registered using the intended parents’ names. However, there are certain criteria you must satisfy in order to be able to apply for a parental order, including that the gametes (sperm or egg) of at least one of the intended parents must be used to conceive.

If you are in a straight or lesbian relationship and you are not able to conceive, you too could consider surrogacy. If you conceive through IVF at a licensed clinic ,yourselves or via surrogacy, the woman who carries the child (even if a donor egg is used) will be the child’s legal mother. In addition, her husband, wife or civil partner in the relationship will also have parental responsibility for the child.

If one of you in a lesbian relationship gives birth to the child and your partner (the intended second legal parent) is not married to you or in a civil partnership with you, you will need to nominate them as the second legal parent by completing the correct forms prior to conception. A sperm donor in this scenario will not have any parental responsibility or any legal obligations to maintain the child.

If you conceive through IFV at an unlicensed clinic and you are the married spouse or civil partner of the legal mother, then you can be named as the second legal parent at birth registration and obtain automatic parental responsibility. If you are the unmarried partner and not in a civil partnership, you cannot be named on the birth certificate and will not obtain parental responsibility, whereas the sperm donor will be considered the second legal parent and, with the consent of the mother, could be named on the birth certificate and acquire parental responsibility.

If you conceive through sperm donated via sexual intercourse rather than artificial insemination, then the sperm donor will be the second legal parent, even if you are married to, or in a civil partnership with the legal mother. The sperm donor in the latter two scenarios could, therefore, be liable for child maintenance and future inheritance claims.

If you want to ensure that, by whatever method you choose of becoming a parent, you have legal parenthood and parental responsibility for your child and you are not sure if you will automatically acquire it or need to take certain steps to acquire it, then speak to our Children Lawyer, Maria Endall on 01328 863231 or email: maria.endall@hayes-storr.com.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.