Same Sex Parenting and the Law – Mills & Reeve

Deciding to have a child is a big decision.

Becoming a parent is a daunting, but exciting, prospect.  If you are in a same-sex relationship there are, inevitably, decisions to make that can prove even more daunting.  However, the law has evolved dramatically over the past few years, enabling same-sex couples to parent children together.  This article provides an introduction to the legal principles that may affect you if you are considering parenthood.

Recognition of parenthood

The Human Fertilisation and Embryology Act 2008 allows same sex parents to be legally recognised as the parent of their child if certain conditions are met.  The Act determines parenthood in cases involving assisted reproduction and recognises same sex parents who are neither the birth-mother nor birth-father of the child concerned.

Women in a civil partnership

The law differs between gay men and lesbians, as well as for those who are in a civil partnership and for those who are not.  For lesbians in a civil partnership at the time of assisted reproduction, the law is relatively straightforward.  The other party to the civil partnership, who is not the birth-mother, is to be treated as a parent of the child provided that the following conditions are met:

1    The non-birth-mother consented to the assisted reproduction; and
2    The child has not been adopted by another person.

The non-birth-mother will be treated as the parent, regardless of whether the assisted reproduction took place in the United Kingdom or elsewhere, and is entitled to register her name on the birth certificate of her child.   Both parents would have full parental responsibility, enabling them to make all of the important decisions in respect of parenting their child.

Women not in a civil partnership

If a woman is not in a civil partnership at the time of assisted reproduction, but has a same-sex partner, it is possible for her partner (the non-birth-mother) to be treated as a parent of the child.  This will be the case provided that the assisted reproduction took place at a licensed clinic and that both the birth-mother and the non-birth-mother gave notice to the clinic confirming that the non-birth-mother was to be treated as the parent of the child.

If the assisted reproduction took place outside of the UK, or did not take place at a licensed clinic, it is necessary to apply for adoption of the child or a residence order in order to gain parental responsibility.

Men in a civil partnership or living together

Since 6 April 2010, it has been possible for men in a same-sex relationship, whether civil partners or not, to apply for a parental order – this is a court order which reassigns parenthood and gives parental responsibility to a parent.

An application for a parental order can be made if:
1    The child was carried by a woman who is not one of the applicants, as a result of placing in her an embryo or sperm and eggs or her artificial insemination;
2    The gametes of at least one of the applicants were used to bring about the creation of the embryo.

Before a court will make a parental order, it must be satisfied that the women who carried the child and any other person currently classed as a parent of the child (but not one of the applicants) have given their unconditional agreement to the making of the order.

Conclusion

The law has moved on considerably and, as well as co-parenting children through surrogacy and artificial insemination, fostering and adoption is also an option for same-sex parents considering parenthood.  The British Association for Adoption and Fostering offers guidance to prospective parents, further information on which can be found at www.baaf.org.uk.

There is much to consider.  Whilst the law may be complicated, it is advisable to ensure that all parties involved, whether the future parent or prospective donor, know exactly where they stand both legally and emotionally before embarking on the exciting journey to parenthood.

By Leah Snape, Solicitor in the Family team at national law firm Mills & Reeve LLP

To contact Leah Snape, please telephone: 0113 388 8443, or email: leah.snape@mills-reeve.com. www.mills-reeve.com, www.divorce.co.uk

The Family team at Mills & Reeve can advise in all aspects of family law, including:
•    Divorce or civil partnership dissolution
•    Unmarried couples
•    Collaborative law and mediation
•    Domestic abuse
•    Financial settlements on divorce – options and ways to protect assets
•    International divorce or children related issues
•    Pensions on divorce
•    Separation agreements
•    Wealth and asset protection – cohabitation contracts, pre-nuptial or post-nuptial agreements

The team provides a friendly, responsive and jargon-free service offering pragmatic advice and excellent value for money.

As one of the largest family teams internationally, Mills & Reeve draws on its years of experience and the expert advice offered throughout the firm. Wherever you are located, the family team can help you.

Mills & Reeve also brings you www.divorce.co.uk, the largest and most comprehensive website of its kind in the UK.

About Mills & Reeve LLP

Mills & Reeve is a top 50 national law firm with 91 partners and a total staff of 800, operating from offices in Birmingham, Cambridge, Leeds, London, Manchester and Norwich.

Mills & Reeve is a full service firm with practice specialisms including corporate and commercial, banking and finance, technology, insurance, real estate, healthcare, local authorities, education and private client.

Clients include commercial organisations – from PLCs to start-ups – high net worth individuals and landowners, more than 70 universities and colleges, over 100 healthcare trusts and NHS bodies, and more than 65 local government institutions.

Award winning

The firm has been voted “regional firm of the year” in the British Legal Awards 2007 and came second in The Lawyer Award’s “regional/national law firm of the year 2007”.

The firm is listed in The Sunday Times 100 Best Companies to Work For 2010 and has been since 2004.

For further information please visit the website at www.mills-reeve.com

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