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

4 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.

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