Parental responsibility and the law: a focus on lesbian relationships

For couples who are in a same sex relationship, there are different ways of having children and different family structures. In addition, there can be different people who hold parental responsibility for the child.

The Human Fertilisation and Embryology Act (2008) sets out who a child’s parents will be.

The law surrounding same-sex parents is complex: it is important that legal advice is sought from the outset to ensure that parents are fully aware of their legal rights and responsibilities in relation to the child.

This blog is about the law that applies to children who were born on or after 6 April 2009. It looks at the law where one of the child’s same-sex parents is the child’s mother.

A further blog will look at the position of male same-sex parents and specifically, surrogacy. Sign up to Burnetts Weekly Blogs here to be notified when it is published.

Who is a parent?

Usually, a child can only have two parents (except in the event of IVF-based techniques where there can be three parents).

A child’s birth mother will automatically be their parent when they are born, even if they are not their biological mother, for example a surrogate.

A child’s second parent, at birth, will depend on the circumstances at the time of their conception.

A birth mother’s civil partner or spouse will be considered to be a parent and can be named on the child’s birth certificate, if they were married or civil partners at the time of conception.

What if the parents are not married / not in a civil partnership?

If the birth mother is not in a civil partnership or married then the law is different depending on whether the child is conceived through a UK-licensed fertility clinic or not.

If the child is conceived through a UK-licensed fertility clinic:

The birth mother can sign an agreement through the clinic to name her partner (if they are not married or in a civil partnership) and/or the biological father (if the donor is known) as the second parent.

If the child is conceived outside of a UK-licensed fertility clinic:

The second legal parent will be the donor father (if he is known to the Mother). However, this doesn’t automatically mean that they will have parental responsibility.

Who has parental responsibility?

A woman who gives birth to a child is the child’s legal mother and she has parental responsibility for the child unless this status is removed by Surrogacy or Adoption.

If the child was conceived through artificial insemination and the birth mother is in a civil partnership or married at the time of the birth, then her civil partner or spouse will have parental responsibility for the child.

If the child was conceived through sexual intercourse with a man and the female partner is not married or in a civil partnership with the birth mother, then she will not automatically have any rights to the child.

If the biological father is named on the child’s birth certificate then he will have parental responsibility for the child.

Can parental responsibility be changed?

There isn’t a limit on how many people can obtain parental responsibility for a child and just because someone is not classed as a parent on the birth certificate, this doesn’t mean that they cannot obtain parental responsibility.

How can a step-parent acquire parental responsibility?

A step-parent can acquire parental responsibility for a child if:

• he or she is the civil partner of /married to a parent of the child who has parental responsibility, and
• enters into a parental responsibility agreement with all of the people who have Parental responsibility for that child.

Alternatively, he or she can apply for a step-parent parental responsibility order.

How can an individual other than a step-parent or parent acquire parental responsibility?

An individual other than a step-parent or parent can acquire parental responsibility for a child if:

1. They adopt the child;

2. They become the guardian of the child; or

3. They obtain a Child Arrangements Order naming them as the person with whom the child is to live. In this situation;

• The person only has parental responsibility while the Child Arrangements Order is in force.
• They cannot make decisions about whether the child should be adopted and
• They cannot appoint a guardian for the child.

How can the donor father acquire parental responsibility?

If a same-sex couple use a licensed fertility clinic, then the donor father is likely to be anonymous and have no further involvement in the child’s life.

If a same-sex couple use a non-licensed sperm donor, then they should enter a written agreement with the donor father that deals with:

• Whether they intend the donor father to be named on the birth certificate;
• Whether they intend the donor father to have parental responsibility;
• Whether they intend the donor father to have any involvement in the child’s life and the extent of that involvement;
• Who the couple intend for the child’s parents to be.

If you are a same-sex couple setting off on the complex journey to parenthood and would like more advise on parental responsibility then Burnetts’ family team would be happy to advise you.

For more information on parental responsibility in same-sex relationships email ea@burnetts.co.uk here.