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Under UK Law, The Human Fertilisation and Embryology Act 2008 defines who the legal parent(s) of a child will be, in different family dynamics. The information in this blog post will relate to children born after 6 April 2009, conceived via donated sperm, eggs or embryos by same-sex female couples.
It is important to remember that biology doesn’t always determine who the legal parent is, and just because someone is legally a parent, it doesn’t mean they also have parental responsibility for the child.
If the child is conceived via one of the methods stated above, inside a UK licenced clinic, the birth mother and her wife/civil partner are automatically the child’s legal parents and will both have parental responsibility, subject to there being consent given on the clinic paperwork.
The birth mother is automatically regarded as the child’s legal parent; however, the identity of the other intended parent depends on how the child was conceived, and in what circumstances.
If the child was conceived through artificial insemination using a known donor (not at a UK licenced clinic), or via sexual intercourse, the birth mother will be a legal parent and the other legal parent will be the biological father. However, there are steps that can be taken to be recognised as the child’s other legal parent.
People with parental responsibility have a legal responsibility to make or be involved in decisions necessary in a child’s life until said child turns 18 years old. This can include (but is not limited to) where the child should live, their education, their health and where they can travel. If a person does not automatically have parental responsibility for a child, they can apply to the family court.
Even if not married or in a civil partnership, a person will be treated as the other legal parent if they and their partner conceive a child at a UK licenced clinic, and all of the relevant forms have been completed to give consent. This means that the child will have no legal father, and said person can be named on the birth certificate along with the birth mother.
If the child was conceived outside of a UK licenced clinic, a person not married to/or in a civil partnership with the birth mother will not automatically be the child’s legal parent, nor have parental responsibility for that child. If the birth mother is in agreement, an application can be made to the family court.
If a person and a child’s other legal parent are on the birth certificate, they will share parenthood and parental responsibility even after separation. If living and/or contact arrangements cannot be agreed after separation, again an application can be made to the family court for help or other methods of dispute resolution, such as mediation, can be considered to help with child arrangements.
If the non-birth mother is not registered as a legal parent and/or does not have parental responsibility, the outcome depends a great deal on the particular circumstances. The child’s welfare is paramount to the court so they will be looking at the established attachment the child has to the non-birth mother. This means that while they may not initially be on ‘equal footing’, they may be able to take steps so that they are.
In this case, the High Court heard an application by a non-birth mother of a same-sex female couple who, despite not having legal parenthood, applied for parental responsibility for her son (aged 5). The application was opposed by the child’s birth mother, despite the couple jointly caring for the child throughout their relationship and after their separation until such a point where the birth mother stopped contact. The couple had been in a same-sex relationship with the non-birth mother for 8 years, separating when the child was 3.
The child was conceived at home via artificial insemination with the assistance of a known sperm donor. As the conception took place outside of a UK licenced clinic, and the couple were not married or in a civil partnership, the non-birth mother could not be named on the child’s birth certificate, therefore, did not possess legal parent status or parental responsibility.
After considering all the circumstances, the court ruled in the non-birth mother’s favour and granted her parental responsibility. The court treated the non-birth female partner in the same way as a biological father for the purpose of applying the parental responsibility legal test. The judge found it to be in the child’s best interests for the applicant to have parental responsibility and referred to the non-birth mothers’ commitment to the child from birth up until now.
This case, alongside others, has established that same-sex ‘psychological’ parents can be granted parental responsibility even if they are not a legal parent to that child. It is increasingly becoming the norm for courts to investigate the reality of the case rather than refer to the legal status of a same-sex parent.
The intention of this blog post is to provide a general overview and to highlight some issues that same-sex couples need to be aware of. As this is a very complex area of law, and every situation is different, we suggest that legal advice is sought. If your situation is similar to any of the above scenarios, or you would like to discuss your unique circumstances with us, please contact us.
Sophie Reynish is a Paralegal in our Brighton team.