There are many different family structures and ways of having a child together when you are in a same-sex relationship.

A child can only have up to two legal parents (except in the event of IVF-based techniques designed to avoid serious mitochondrial diseases where there are three legal parents). However, just because someone is legally a parent it doesn’t mean they have parental responsibility for the child in the eyes of the law. Biology doesn’t always determine who the legal parent is and even if someone is not legally or biologically a parent, they may be regarded as a psychological parent.

Same-sex couples need to be aware of who are the legal, biological and psychological parents of their children and who has parental responsibility. In this blog I set out to answer some of the questions I commonly hear from same-sex parents about parental responsibility.

Why does it matter who a child’s legal parent is?

  • Only a legal parent can be named on a birth certificate.
  • A legal parent has financial responsibility for the child.
  • It has an impact on inheritance.
  • A legal parent has an automatic right to apply to court for an order in relation to the child.
  • Being identified as a legal parent can often be emotionally important to the people raising the child and the child itself.

What is parental responsibility?

Parental responsibility is defined as ‘all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property’.

If you have parental responsibility you have the right to be consulted in key decisions about a child’s upbringing such as medical treatment, education and trips abroad.

Even if you are the biological parent and/or the legal parent you may not necessarily have parental responsibility.

So, who is a legal parent and who has parental responsibility?

Birth mother

The woman who carries and gives birth to the child (even if the child is not biologically hers) is the child’s legal parent and has parental responsibility for the child unless parental status is removed by either a Parental Order following Surrogacy or Adoption.

The other legal parent

Who the other legal parent is depends on the circumstances around conception, marital/civil partnership status and subsequent steps that may have been taken after the birth of the child to formalise the legal status. But generally speaking the position is as follows:

(Please note, for a child conceived before 06.04.09 different law applies which is beyond the scope of this blog post)

  • Intercourse

The biological father will be the other legal parent and will have parental responsibility if named on the child’s birth certificate.

  • Artificial insemination (not at a licensed clinic)

If the birth mother is in civil partnership or married her civil partner or spouse is the other legal parent and will have parental responsibility.

If the birth mother is not in civil partnership or married to her partner, the birth mother’s partner is not recognised as the other legal parent (the biological father will be the other legal parent).

  • Licensed clinic

The birth mother and the birth mother’s partner (if the relevant forms are signed at the clinic) will be the legal parents. If they are married or in a civil partnership the birth mother’s partner will have parental responsibility, if not the birth mother’s partner can acquire parental responsibility if named on the birth certificate.

Change of legal parenthood after birth

The legal status of a parent as set out above can be changed by one of the following after the birth of the child:

Adoption

This is a formal legal process. An Adoption Order changes and defines who a child’s legal parents are and grants parental responsibility.

The process is complex but you may find this online overview helpful –  https://www.gov.uk/child-adoption/overview.

Surrogacy

Surrogacy is a process whereby a woman agrees to carry and give birth to a child for a couple who will become the child’s parents after birth. The intended parents will need to apply for a Paternal Order after birth in order to become the child’s legal parents. Parental orders are only currently available to couples.  However, the law is set to change, possibly by mid 2018, to enable single parents to apply.

Again, the process is complex, a helpful overview can be found through this link –  https://www.gov.uk/legal-rights-when-using-surrogates-and-donors.

Obtaining parental responsibility for a child after birth

There isn’t a limit on the number of people that can share parental responsibility for a child. If it is not obtained through the above circumstances steps can be taken to acquire it by the following options:

  • A Parental Responsibility Agreement
  • A Parental Responsibility Order
  • A “live with” Child Arrangements Order
  • An Adoption Order
  • A Paternal Order

Which option is best will depend on the individual circumstances of the family and full legal advice should be obtained to assist in making a fully informed decision.

Social and psychological parenthood

Regardless of who the legal parents of a child are, the relationship which develops through the child demanding and the person providing for the child’s needs – initially at the most basic level of feeding, nurturing, comforting and loving, and later at the more sophisticated level of guiding, socialising, educating and protecting – is a very important one.

There are many same-sex couples who have children together intending to be a family but who do not go on to regularise the legal position. Previous cases before the Courts have therefore developed to recognise the concept of the ‘psychological parent’. The rationale for this focus on psychological parenting is that in a welfare-based jurisdiction, the family unit in which the child is raised is likely to be of more relevance to the child’s day-to-day wellbeing than biological or legal parentage. The focus of the Courts in England has often been on the child’s experience of being parented, rather than just strictly on the legal status of the parent or a biological tie

Same-sex parenting –  summary

The law relating to parental rights of same-sex couples is complicated and it is not possible to cover every scenario within one blog post. The intention of this blog post is to provide a general overview and flag up some issues that same-sex couples who are looking to become parents, or indeed are parents, need to be aware of.

I am planning to write further blogs to cover some of the above-mentioned issues in more detail – if you are in a same-sex relationship and have questions about a family law issue, or would like to see a certain topic covered, please let me know.

Are you in a same-sex relationship and want to understand your rights?

Contact Gemma

20 responses to “Same-sex parenting and the law

    1. It will depend in part whether or not the partner you are separated from has legal parenthood and/parental responsibility for the child. If you both are recognised as the child’s legal parents and both have parental responsibility you are both on an equal footing. If the partner you are separated from is not recognised as the child’s legal parent and/or does not have parental responsibility whilst they might not initially have an equal say they maybe able to take steps so that they do, depending on the specific circumstances. Ultimately it is about the rights of the child, rather than the rights of the adults involved in their upbringing, and any decision making or determination of arrangements for the child are determined based on what is in the child’s best interests. You should contact our specialist team to book a consultation to obtain advice on your specific circumstances.

  1. My case is of a lesbian couple. They are not married or in a civil partnership. The birth mother conceived via a donor from a clinic abroad (therefore not registered) and they would like a parenting agreement so they both have parental responsibility.

    1. A lot more information about the specific circumstances would be needed in order to advise on the options in relation to obtaining parental responsibility. Please contact our specialist modern families team to arrange a consultation.

  2. Hi, I am a gay female married with a child. My wife was the birth mother. we were married before IVF and I am named on the birth certificate. This morning I went to a pre medical assessment for my son and the nursing staff did not know if I had parental responsibility, and did not know if i could sign his consent form! I am quite sure I do but it has cast some doubt in my mind and I would like legal confirmation. I then worried about what would happen if my wife died, would I be seen as my sons parent with full parental responsibility.

    1. A woman who is married to the birth mother at the time of conception is automatically the child’s other legal parent subject to the child being conceived after 6 April 2009. The non birth mother in these circumstances can be named on the child’s birth certificate and automatically has parental responsibility. This would however not apply if the non-birth mother did not consent to the conception. If you are in any doubt about your legal status as a parent we recommend that you contact one of our specialist team for an appointment so you can provide full details of your circumstances and obtain legal advice.

  3. Hi, we have two children and who where conceived in an overseas licensed clinic(paperwork available) when registration of birth only the birth mother was allowed on certificates. We are now married and what our children to have both parents on birth certificates and second mother to have legal responsibility but not sure what route to go down?

    1. In order to advise you about the options available we would need to know a lot more about your specific circumstances. We recommend that you contact one of our specialist team for an appointment so you can provide full details and obtain legal advice.

  4. Hi I’m currently 19 weeks pregnant I conceived via AI me and my partner are not married or in a civil partnership can I still add her to the birth certificate? We see some websites say yes others say no. We confused

    1. Congratulations on the pregnancy! A lot more information will be needed about your specific circumstances in order to advise. If you would like to arrange an initial consultation for advice please contact one of our specialist modern families team.

  5. Hey, I am separated from my wife. We had a little girl together before we were married. She is three years old. And my wife has just stopped me seeing her. Do I have any rights at all?

    1. Details of your specific circumstances would be needed in order to advise you as to what your options are. You should seek legal advice. You can contact our specialist Modern Families team to arrange an initial consultation by calling 01273 646900.

  6. My girlfriend and me have had IVF abroad (Cyprus) using an anonymous donor, I am currently pregnant with twins. We are unmarried. How do we approach my girlfriend being the other parent on our babies birth certificate.

  7. Hi I was married before I fell pregnant with my daughter, my ex wife is on her birth certificate. Two questions, can I get her taken off, and where do I stand legally as imnwanting to move away, my daughter lives with me and ex has her 2 weekend a month. Thanks

    1. You can only get someone removed from a child’s birth certificate in very rare circumstances, such as if there is an order from the court declaring that the person named is not actually the legal parent of the child. We would need to know a lot more information in order to advise you as to whether you have a case for removing your ex wife from being named on your child’s birth certificate.

      With regards to moving away with your daughter the following factors would be taken into account to determine whether the move is in your child’s best interests:

      The ascertainable wishes and feelings of the child concerned (in light of their age and level of understanding); The child’s physical, emotional and educational needs; The likely effect on the child if circumstances changed as a result of the court’s decision; The child’s age, sex, backgrounds and any other characteristics which will be relevant to the court’s decision; Any harm the child has suffered or maybe at risk of suffering; and Capability of the child’s parents (or any other person the courts find relevant) at meeting the child’s needs.

      The following guidance would also need to be looked at:

      Is the motivation to relocate genuine?
      Is the opposition to the relocation genuine?
      Are the proposals for the relocation/opposition to relocate realistic, well researched and investigated? For instance what are the proposed arrangements for:
      Accommodation? Schooling? Health care? Career/employment opportunities? Support network? Proposals to maintain relationship with other parent / family?
      Financial viability? Essentially it is a delicate balancing exercise, weighing up the pros and cons for your child of staying or relocating.

      You should contact a member of our specialist modern families team for advice by calling us on 01273 646900.

  8. Hi I have read all of this so I think it is clear, but if you wouldn’t mind just clearing it up for me please. Me and my wife were married before we had AI thro home insemination, my wife is the birth mother, I am also on the birth certificate. Do I have the same rights as my wife? If anything were to happen would he stay with me or go to my wife’s mother? If that’s the case we would like advice on what avenue we will need to take to make sure he stays with me. Thank you so much

    1. We would need to know more information in order to advise you and specific advice is beyond the scope of a blog post comment – we suggest you contact our specialist modern families team on 01273 646900 to arrange a consultation.

  9. Hi, i am a married to a woman but we are no longer together, we living in separate houses etc. i am looking to have a baby of my own with a donor using Artificial Insemination at home with my present partner, would my wife be any part of the babies life? (have any rights over this baby)? or am i committing some sort of offence? Also can my present partner that will be there when the baby is being conceived and at the birth etc go on the birth certificate? thanks, Jes

    1. Specific advice on your circumstances is beyond the scope of a blog post comment. Please contact our specialist modern families team to arrange a consultation by calling 01273 646900.

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