BTO’s Lesley Gordon discusses the legal landscape surrounding parenting where the parents are female same-sex partners.
Having a child can be one of the most exciting and momentous things any couple decides to do. At the same time, bringing a baby into your life can be stressful, especially in the way in which it can impact on your work and your income. What people often fail to consider is that the legal landscape surrounding parenting can be complicated but no more so where the parents are female same-sex partners.
So what factors should you take into consideration when embarking on this journey?
Legal Parenthood v Parental Rights and Responsibilities
It is important to distinguish at the outset that Legal Parenthood is an entirely different concept to Parental Rights and Responsibilities. A child can only ever have two legal parents, but it is possible for more than two people to have parental responsibilities and rights in respect of a child.
Legal parenthood is important as it has a bearing on matters such as inheritance and whether or not you have a financial responsibility towards the child. Generally speaking, a child’s legal parents are its biological mother and father. However, in the situation where the child is conceived through assisted reproduction, the situation is not so clear cut.
Methods of Conception
Which person(s) will be the legal parents of a child very much depends on the means by which a child is conceived.
The Human Fertilisation and Embryology Act 2008 sets out who a child’s legal parents will be when the child is conceived through donor insemination.
“Which person(s) will be the legal parents of a child very much depends on the means by which a child is conceived.”
Where the child is conceived in a licensed UK fertility clinic and the couple are married or civil partners at the time of conception, both of them will be the legal parents of that child and both will also have parental responsibilities and rights. Both parents will also be named on the child’s birth certificate. Should the non-birth mother not wish to have the legal parent status, she would need to seek legal advice about how to demonstrate that she does not consent to the conception taking place. If you are the birth mother and you do not wish your civil partner to be treated as a legal parent, then you will have to show that she did not consent to the conception.
If the couple is not married or in a civil partnership at the time of conception then they can both be considered legal parents of the child so long as the relevant consent forms have been signed at the fertility clinic before conception. The fertility clinic will normally provide these to you and retain copies in their records. If either of the couple changes her mind before conception she can withdraw her consent. It is important to note that this consent can only be withdrawn prior to conception. For both parents to be listed on the birth certificate, you would both need to attend the registration of the birth. The non-birth mother can elect not to be so named although in that case she will be in the unusual position of being a legal parent to the child but not having any Parental Rights and Responsibilities.
What About the Sperm Donor?
Whether the sperm is supplied by the clinic or by your own donor, in either of the above situations, the donor will not be the legal parent of the child.
What if we don’t use a UK registered HFEA clinic?
Of course, couples can elect to use a clinic outwith the UK, or do things informally, though it is important to bear in mind that the same legal protections set out above are not in place in these situations.
“…the same legal protections set out above are not in place in these situations.”
If you choose this option, and are not married or in a civil partnership at the time of conception, only the birth mother will be considered to be the legal parent. The non-birth mother will not have this status unless she later adopts the child. It would be possible for the birth mother to grant the non-birth mother parental rights and responsibilities. In this situation the donor will be considered to be the legal father and can be recorded on the birth certificate. Doing so will give him parental responsibilities and rights. This will require to be carefully considered by the birth mother and sperm donor, as this is likely to have an impact on the non-birth mother’s ability to apply to adopt the child at a later date. It will also make the sperm donor liable to be responsible financially to support the child.
Many couples decide not to use clinics at all and conceive at home with a private donor. If you and your partner conceive by this means and are married or in a civil partnership you will both be the legal parents of the child and have parental rights and responsibilities. This is dependent on the key condition that the child was conceived by artificial insemination and not by sexual intercourse.
What happens if we separate before the child is born?
This scenario is more common than you may think and will be dependent on what the situation was at the time the child was conceived. Whether or not the child is conceived using a fertility clinic or at home, if you are married or in a civil partnership you will both be considered parents unless it can be shown that the non-birth mother did not consent to the conception taking place.
Irrespective of your relationship status, it is advisable to consult a solicitor to ensure that you are aware of your legal rights.
Please also visit our page on Parenthood for female same-sex couples.