Same-sex couples and the law about parenthood

By Hannah Saxe, Senior Associate Solicitor, Family team

The law relating to parenthood can be complicated, especially for same-sex couples. There are a number of key legal issues they may wish to consider if they plan to conceive or if they already have children.

Why is it important for same-sex couples to consider the law about parenthood? 

Their family set-up may be different as they may choose less conventional ways to have children. There could, for example, be more than two people co-parenting the children if they were conceived with the help of a known donor.

A person won’t necessarily be considered a parent as far as the law is concerned simply because they have a parental role. In order for everyone to have a clear understanding of their rights and responsibilities, the key concepts for same sex-couples to consider are legal parenthood and parental responsibility.

What does it mean to be a legal parent?

Legal parents have financial responsibility for a child. Their child can inherit their assets if they die and their British nationality. There can only be (except in some rare IVF cases) two legal parents. It’s only the legal parents who can be named on the child’s birth certificate and, crucially, they have an automatic right to make an application to court for assistance if there’s a dispute about the arrangements for the child’s care.

Being a biological parent doesn’t necessarily mean you’ll also be a legal parent.

What does it mean to have parental responsibility?

Someone with parental responsibility has the right to be consulted about important decisions concerning a child’s upbringing, for example, about their religion, education and medical treatment. It’s therefore important for someone in a parental role to have parental responsibility if they want to have an equal say about these issues, particularly if there’s a dispute.

There’s no limit on the amount of people who can have parental responsibility for a child and they do not have to be a biological or legal parent.

Who are the legal parents and who has parental responsibility? 

The rules about who is a legal parent and who has parental responsibility can be complicated. It depends on factors including the circumstances of conception and whether the birth mother (or person who gives birth) was married, together with any steps taken to formalise the position after the child’s birth.

The birth mother is always a legal parent even if they aren’t genetically related to the child because they, for example, conceived using donor eggs. They also automatically have parental responsibility.

As for the other legal parent, the position (about children born after 6 April 2009) is generally as follows:

• If the child was conceived through sexual intercourse then the biological father will be the other legal parent and will have parental responsibility if he’s named on the birth certificate
• If the child was conceived outside of a UK licenced clinic by, for example, artificial insemination at home, and the birth mother is married or in a civil partnership, then her spouse or civil partner will be the other legal parent and will have parental responsibility. The birth mother’s partner won’t be the other legal parent or have parental responsibility if they aren’t married or in a civil partnership. The biological father will be the other legal parent. He won’t automatically have parental responsibility unless he is named on the birth certificate
• If conception takes place at a UK licenced clinic then the birth mother and her partner will be the legal parents and will have parental responsibility if they are married or in a civil partnership. If they aren’t, then they can sign paperwork to enable the mother’s partner to be the other legal parent. They will also acquire parental responsibility if they are named on the birth certificate.

Can someone become a legal parent or acquire parental responsibility once a child has been born?

It’s possible to change who the legal parents for a child are after the child is born. For example, an adoption order transfers legal parenthood and grants parental responsibility.

In surrogacy cases, the surrogate, and sometimes her spouse or civil partner, will initially be a legal parent or parents. The intended parents can apply to the court for a parental order transferring legal parenthood and parental responsibility to them.

A parent who isn’t a legal parent may be able to make an application for a declaration of parentage to the court.

It’s also possible for someone to obtain parental responsibility after a child is born by entering into a parental responsibility agreement with the birth-mother, obtaining a parental responsibility order from the court or obtaining an order that the child should live with them.

Do biological parents have more rights than non-biological parents if there’s a dispute about the arrangements for a child?

If a same-sex couple are both registered as parents on their child’s UK birth or adoption certificate then they share legal parenthood and parental responsibility and should be treated equally should it be necessary for an application to court to be made, regardless of biology.

It’s more complicated where one parent is not a legal parent and/or doesn’t have parental responsibility for the child.

If they aren’t a legal parent then they can still make an application to court about the arrangements for the child but they may be required to ask the court’s permission to do so in the first instance.

If they don’t have parental responsibility then they will not have an equal say in decisions about the child’s life.

They may be able to take steps to change their status to ensure they have the same rights and responsibilities as the other parent, as explained above.

Ultimately, when deciding disputes about the arrangements for children the court will consider the child’s welfare and best interests over and above considerations of biological or legal parenthood or the rights of the parents.

Even if the rules concerning legal parenthood and parental responsibility don’t apply, a person can still be considered a social or psychological parent, provided they can establish that they have a strong attachment to the child. In such circumstances, they may still be able to obtain orders and have their views heard in a dispute but, practically speaking, this may be much harder for them to achieve.

If you require further information about the issues covered in this article, please do get in touch.