The law surrounding same-sex parents is complex and if legal advice is not sought from the outset then it can result in complications. The manner by which a child is conceived in a same-sex relationship has a considerable impact on which parents are considered to have “parental responsibility” for that child. Full legal advice should always be sought when same sex couples are considering raising a child so that parents can ensure that they are aware of their legal rights in relation to that child.
Parental responsibility entitles parents to have an input into the important decisions in a child’s life. This includes issues concerning the child’s health, education, religion and welfare.
Where a child has a mother and father and they both already have parental responsibility, a step-parent may acquire parental responsibility if everyone who has parental responsibility consents to that and enters into a parental responsibility agreement.
Same-sex couples may adopt a child. This may be ordered with the parents’ consent or for a child who has been placed for an adoption by an adoption order. When the Court considers adoption the child’s welfare is the paramount consideration. The Court will also take into account factors such as the child’s wishes, the child’s needs and the effect on the child of being adopted. Upon the making of an adoption order or an adoption agency placing a child with the applicant for adoption the Applicant(s) will be granted parental responsibility for the child.
An adoption order ensures that only the adopters have parental responsibility. Any other individuals who had parental responsibility see that right extinguished and they will also not be allowed to apply for contact with the child.
Where an adoption order has been made in a foreign country that order may be recognised in England and Wales, this is especially likely where the adoption order was made in a Hague Convention Country.
If an adoption order has not been made or is not recognised in England and Wales and the Applicant lives in a different country to the child, then an application will have to be made in England and Wales. To do so one of the Applicants must be domiciled in the British Isles. Alternatively all Applicants must have been habitually resident in the British Isles for a year before the application. There are no requirements for the domicile of the child.
Whether both partners are considered a child’s parents will depend on the parties’ relationship and the circumstances surrounding the conception of the child. The biological Mother of the child must carefully consider who should have parental responsibility for the child. They must also consider what role, if any, they would like the biological father to play in the child’s life:
- If a lesbian couple are in a civil partnership and the baby is conceived by sperm donation, provided that the partner wants to be considered a parent, they will be considered the second parent and share parental responsibility. This applies irrespective of the arrangements, unless the child was conceived through sexual intercourse with the genetic father. Must be civil partners at the time of conception. When the child is 18 years old they may be able to find out more details about the donor father.
- The presumption of parenthood does not currently extend to married lesbian couples. The Marriage (Same Sex Couples) Act 2013 provides that a same sex marriage has no relevance to who a child’s parents are. This means that unlike a female civil partner of the mother of a child, a female spouse is not automatically considered the parent. There may well be an amendment to the law in the future, to address this point – but currently a female spouse would need to seek parental responsibility as below.
- If two females have not entered into a civil partnership or marriage, the partner will only also have parental responsibility and be considered a second parent if the fertility treatment was in a UK licenced clinic and the partner has completed the requisite forms.
- Another female parent may also apply for parental responsibility or residence, acquire it by virtue of being registered on the birth certificate, or have a parental responsibility agreement with the mother.
A child can only have 2 parents. This is therefore the mother and her partner or the mother and the father. The father is able to be considered as the legal second parent if:
- The mother is not in a civil partnership and her partner did not comply with the fertility clinic in England’s requirements.
- If the mother is in a civil partnership then the biological father will only legally be considered the second parent if the child was conceived by sexual intercourse.
In order to avoid any disputes with a Father where there is artificial insemination it is prudent to obtain contemporaneous evidence that the child is not conceived through sexual intercourse.
If the biological father is not legally considered the second parent then he will not have a duty to pay child support, will not have parental responsibility and will not have the right to have contact with the child.
Where a gay man or a gay couple wish to have children, one option is surrogacy. Whilst some gay couples choose to adopt children, others prefer to have children who are genetically theirs.
The parents who ‘commission’ the surrogacy have no parental responsibility for the child at the time of its birth if the child is not conceived through sexual intercourse. A Court order is required to transfer parental responsibility to the commissioning parents.
A parental order may be made if the child is conceived using the sperm of one of the commissioning parents. The child must also be living with the commissioning parents and the application must be made within 6 months of the child’s birth. The surrogate mother must agree to an order being made and understand the consequences of it, namely that it transfers parental responsibility to the commissioning parents.