Following the end of LGBT+ History Month, I’ve been examining how family law has progressed in relation to LGBTQIA+ families and what hurdles still remain. These conversations should continue all year round and not be confined simply to a month. I recently prepared an article exploring rights for non-heterosexual couples when it comes to marriage, civil partnership, divorce, financial arrangements and cohabitation.
In this article, I’m going to briefly explore the rights of LGBTQIA+ parents in relation to surrogacy and child arrangements. I hope to provide a snapshot of where the law currently stands. There are different family structures and ways to have a child; hopefully this clarifies the basic legal position in England and Wales for you.
Surrogacy is when a person (“the surrogate”) carries and gives birth to a baby for another person or couple (“the intended parent(s)”). The surrogate may use her own egg (this is known as “traditional” surrogacy), meaning there is a genetic link between her and the baby. The intended parent(s) or an egg donor may also provide the egg (this is known as “gestational” surrogacy), meaning there’s no genetic link between the surrogate and baby.
Legal Parentage and Surrogacy
As a general point, a child can only have a maximum of two legal parents. The woman who carries and gives birth to the child is always a legal parent, even if the child is not biologically hers (e.g. where donor eggs are used). As a result, a surrogate is always a legal parent at the time of birth, but can be and this status continues unless it is extinguished by a parental order or adoption.
In 2008, the Human and Fertilisation and Embryology Act (“HFEA”) was updated. This allowed same-sex couples to be recognised as legal parents of children conceived through the use of donated sperm, eggs or embryos.
Before this, there was a “need for a father”. The other legal parent had to be the biological father. Some fertility clinics used this as a way to refuse treatment to female same-sex couples and single women. The same Act also allowed male same-sex couples to apply for a parental order to be recognised as legal parents following surrogacy.
Following this Act, if at the date she conceives the surrogate is legally married, or in a civil partnership, her spouse or partner, will be the other legal parent. As long as the spouse or partner consented to the fertility treatment that resulted in conception.
If the surrogate is single at time of conception, the other legal parent will usually be the biological father. If, however, conception takes place at a licensed UK fertility clinic, she can nominate another person, such as one of the intended parents, to be the other legal parent.
If surrogacy takes place abroad, the jurisdiction in which it takes place may recognise the intended parents as the legal parents immediately. They will nevertheless still be required to obtain a parental order in this country to ensure that they are recognised as legal parents here.
The duty to register the birth of a child falls on the surrogate as the legal mother in England and Wales. But, she can request that the child’s surname is registered as the intended parents’ surname rather than her own.
So, how do we remedy this situation the legislation creates regarding legal parentage when the intended parents are not automatically the legal parents of a child?
A parental order can completely reassign the parenthood of a child to the intended parents and also provides them with parental responsibility.
The mechanism for making an application for a parental order comes from S54 HFEA for couples and S54A for single people. This legislation sets out a list of criteria to be met in order to bring an application. This area of law can be complex so I’d strongly recommend seeking expert legal advice from one of our solicitors prior to embarking on a surrogacy journey.
Whilst the process allows a step towards equality in who can be a parent, there’s still scope for major reform. The Law Commission has undergone a full review of surrogacy legislation in England and Wales. It’ll still be some time before proposals are implemented. One of the major considerations is the option for intended parents to become the legal parents from birth in some domestic cases. Any changes will have to be balanced against ensuring the welfare of any child. But, this should be the case for all types of families and such a step would improve equality for LGBTQIA+ families.
Child Arrangements and Parental Responsibility
You’ll have seen me reference the term ‘parental responsibility’ throughout this article.
Parental responsibility is defined in legislation as:
“…all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and their property.”
There are a number of ways that a person can acquire parental responsibility for a child. This isn’t an exhaustive list, but they include:
- Giving birth to a child
- Being a child’s biological father if married or in a civil partnership with the mother
- Being registered on the child’s birth certificate at initial registration for a child born on or after 1 December 2003 as an unmarried father
- Being married to, or in a civil partnership, with the biological mother, at the time of conception
- Where a parental order is made in your favour
A Child Arrangements Order sets out who a child ‘lives with’ and who a child ‘spends time with’. If a ‘lives with’ order is made in a person’s favour then they acquire parental responsibility. But it does not make someone a legal parent. This is why, where children are born through surrogacy, the parental order process is the best route.
This article is meant to provide a brief overview of available avenues to parenting for same-sex couples. There are other steps in relation to both legal parenthood and parental responsibility which can be explored for those who find themselves in the role of a parent outside a non-traditional framework. Therefore sitting down with one of our expert solicitors in this area is well recommended to understand the avenues available to confer rights and responsibilities on you as a parent(s).
Irwin Mitchell’s Family Law Team recognise that you can’t separate the law from the ongoing struggle for equality that LGBTQIA+ people face. We continue to be a part of this important conversation and are always available to discuss, with both a sympathetic ear, and clear expertise, how we can assist you. Do make sure to read my other article exploring LGBTQIA+ family law matters surrounding marriage, civil partnerships, divorce, financial relations and cohabitation as linked at the top of the article.