February 2, 2020

Lesbian Parents, Fertility Treatment and the Law

With family units becoming more diverse, there has been an increased demand in lesbian couples seeking fertility treatment, when couples’ thoughts turn to children.

The law relating to legal parenthood and parental responsibility is an important factor when same sex couples are considering beginning a family. Regrettably, the law is not always as straight forward in this area as it could be.

Before stepping into this process, it is worth taking some time to consider the issues of legal parenthood and parental responsibility.

Legal parenthood

Currently, a child can only have up to two legal parents in England and Wales, except in the very rare situation where there is IVF treatment to avoid mitochondrial diseases. Only a ‘legal parent’ can be named on a birth certificate. However, parents who are not considered a ‘legal parent’ can still go on to acquire parental responsibility for a child.

Who is a legal parent?

The ‘birth mother’, always. If you give birth to a child, even with a donated egg, you are automatically their mother and legal parent. This can be severed however by a later adoption order.
If you are married or in a civil partnership with a birth mother before any fertility treatment commences using donated sperm or embryos, you will also automatically be the legal parent unless you do not consent to the treatment.
If you are male and father a child through intercourse, you are the legal parent regardless of the marital /relationship status of the mother.
Parents named on a valid adoption order are the legal parents of the child named on the order.

Who is not a legal parent?

If you are female and in a relationship with a birth mother but you are not married to her, nor in a civil partnership with her, you won’t automatically be the legal parent unless you both consent formally before treatment at a recognised UK fertility clinic, even if you are donating your eggs for the treatment.
If you are the female partner (whether married/civil partnership or not) of the birth mother who conceived a child through intercourse, you are not considered that child’s legal parent, but the biological father will be. Therefore, problems can arise if conception occurs this way, and you may need to seek legal remedy via a court order.
If you are a ‘known donor’ who donates to a couple who are married/in a civil partnership, you will not usually be considered the legal father, even if the conception takes place entirely informally at home, provided the spouse/civil partner consents. There is no strict legal requirement for insemination to take place at a licensed clinic, though not to do so means no health screening will take place. Provided that the child is not conceived through sexual intercourse, a known donor will not usually be a legal parent unless the known donor is named on the birth certificate. As it is usually not intended that the known donor holds parental responsibility, most couples using this method would not do this. If not named on the birth certificate, the known donor will not hold parental responsibility unless later granted this by some other means. Unmarried couples/couples not in a civil partnership using this method, however, will find that the non-biological parent will need to either adopt the child or acquire parental responsibility through other means, as they will not be able to name themselves as a legal parent on the birth certificate.
If you are male and are an anonymous sperm donor who donates to a registered UK fertility clinic, you remain a biological but not legal parent of any child born. You will not:-

have any legal obligation to any child born
have any rights over how the child will be brought up
be asked to support the child financially
be named on the birth certificate

Donors are, however, now required to provide personal, identifying information, which can be made available to any child born of their donation by request once they reach 18 years old.
If you are an egg donor.

Important points regarding legal parenthood:-

As a legal parent, you can be named on the birth certificate and acquire parental responsibility.
Consent is a very important issue for unmarried couples. If a child is conceived through a UK-licensed fertility clinic, a 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 legal parent depending on her wishes. Consent can be withdrawn up to the time that treatment commences.
Legal parents retain financial responsibility for a child, and legal parenthood also impacts upon inheritance. This is regardless of whether the legal parent holds parental responsibility.
If you are the unmarried partner of a birth mother, and legal parenthood consent has been given incorrectly, you may need to apply to court for a court order to rectify this.

Parental Responsibility for LGBTQ families

It is important to establish that biological links do not necessarily determine the legal rights and responsibilities in relation to a child. ‘Parental responsibility’, which is described as ‘the legal rights, duties, powers, responsibilities and authority a parent has for a child and the child’s property’, is vitally important during the upbringing of any child.

If you hold parental responsibility, you will be entitled to be consulted regarding the child’s education; medical treatment; any change of name; and any trips abroad. The issue of parental responsibility is also often emotionally significant to the family and the child’s identity. Unlike legal parenthood, more than two people can hold parental responsibility for a child.

Who can hold parental responsibility? :-

A ‘birth’ or biological mother (unless removed by a parental order following surrogacy, or an adoption order.)
A biological father who has been named on the birth certificate and/or is married to the birth mother.
A civil partner/spouse of the birth mother who has conceived a child after 6 April 2009 through artificial insemination at a registered UK Fertility clinic who has consented to treatment, and is then named as legal parent on the birth certificate.
Someone who is named on a correctly executed Parental Responsibility Agreement or Step-Parent Parental Responsibility Agreement.
Someone who holds a Parental Responsibility Order.
Someone who holds a Special Guardianship Order.
Someone who holds a Child Arrangement Order stating that the child is to live with them for the duration of that Order/until such order expires or further order is made to the contrary.
A legal guardian appointed by will upon the death of a legal parent.
An adoptive parent.

Important points regarding parental responsibility for LGBTQ families:-

If your civil partner or wife conceived a child after 6 April 2009 through artificial insemination (at a clinic or at home), you and your civil partner/ wife will be the child’s legal parents and will both have parental responsibility. This is true whether the sperm donor is known or unknown. You should ensure both of your names are on the birth certificate.
As indicated above, if a child was conceived through sexual intercourse with a man, and a female partner is not married or in a civil partnership with the birth mother, then she will not automatically have any rights and responsibilities in relation to the child, and the biological father will usually be considered the legal parent. This can cause significant difficulties in same sex families and will require legal remedy.
Parental Responsibility can subsequently be obtained if required through a number of channels to include via a Step-Parent Parental responsibility Agreement, Parental Responsibility Order, a Child Arrangements Order (Living With) or Adoption, depending on the family circumstances and wishes.

If you would like further legal advice or assistance relating to these issues, please contact Sarah White at our Cambridge office on 01223 316666.