Same-Sex Couples – Parenting Options

February 2021 is LGBT History Month. In this blog, FLiP Director David Allison identifies the current legal challenges and consequences surrounding parenting options for same sex couples.

Having a child is a major decision for any couple. For same sex couples there are additional challenges and it is important to be clear about the legal consequences of each option. In dealing with the options below, I deal only with the position for same sex couples. I am also only dealing with domestic arrangements.  International arrangements add another layer of complexity and proper advice is essential before considering this.

Artificial Insemination

Many same sex female couples have children through artificial insemination. This can either be through an anonymous or known donor and the latter may be through a licensed clinic or informally.

The woman who carries the child will always be the child’s mother. Where that woman is married or in a civil partnership then her spouse/civil partner will be the other parent (not the other mother) unless it is shown that she did not consent. The spouse or civil partner will always have parental responsibility for a child born though the artificial insemination of her spouse or civil partner.

Where the woman who carries the child is not married or in a civil partnership another woman may be treated as the other parent (not the other mother).  This happens where she and the woman carrying the child has given formal notice to the clinic that they agree that the other woman should be the other parent. The other parent will have parental responsibility for the child provided she is named on the birth certificate.

It does not matter if the sperm donor is known and whether the pregnancy comes about through artificial insemination at a licensed clinic or informally. The sperm donor will only be the father of the child if he is married or in a civil partnership with the mother or has gone for treatment services with her. If the child is born following sexual intercourse then the man will be the father of the child even if the woman is married or in a civil partnership.

It is not unusual for a same sex female couple and a same sex male couple to create children together.  It is important for the men to know that they will not be legal parents unless the sperm donor has sexual intercourse with the mother and the child is created as a consequence. Nonetheless any adult who is significantly involved in the life of a child may acquire parental responsibility for the child through court order. The same sex male couple could therefore acquire parental responsibility for the child and make applications for other orders concerning the child. They cannot though be held financially responsible for the child because they will not be the child’s father(s).

Surrogacy

Same sex male couples will often have children through surrogacy. Surrogacy is where a woman carries a child for the couple. The surrogate may be implanted with the sperm of either or both of the commissioning parents.

It is important to understand that the surrogate will always be the child’s mother. If she is married or in a civil partnership her spouse or civil partner will be the other parent unless it is shown she did not consent (see above).

The commissioning parents become legal parents to the child through a parental order made after the birth. It is also important to understand that the surrogate must consent to the making of the parental order (as must her spouse or civil partner) and that consent can be withdrawn at any time before the order is made.  The parental order extinguishes the parenthood of the surrogate and her spouse. A new birth certificate is issued to the commissioning parents.

Adoption 

The final option for same sex parents is adoption. Usually this is done through the local authority. An adoption order makes the adoptive parents the legal parents of the child and extinguishes legal ties with the birth parents. Prospective adopters need to be approved by an adoption panel. The local authority will appoint a social worker for the prospective adopters once they are approved by the panel to match the prospective adopters with a child and help them through the process.