The legal position of same sex parents in relation to their children can be complex, depending on the circumstances in which the children were conceived, the legal status of the adults involved, their gender and – because of changes in legislation – the date on which the child was born.
If a child was born before 1 September 2009, the birth mother has parental responsibility either alone or, if the donor father is named on the birth certificate, in tandem with him. The birth mother’s partner can acquire parental responsibility through a number of different methods, including a child arrangements order and a parental responsibility agreement. The donor father and his partner may also acquire parental responsibility through the same means.
If a child is born on or after 1 September 2009, it has been possible for lesbian couples to be named on the birth certificate as the joint parents of that child. They can register in this way irrespective of how their child was conceived if they were in a civil partnership or, since 2014, if they were married, at the time of conception. If they were not in a civil partnership or marriage at that time, they can still both be named on the birth certificate provided they conceived together through a fertility clinic licensed by the Human Fertilisation and Embryology Authority and they signed consent forms in which they elected this option before the date of conception. The effect of the non-birth mother being named on the birth certificate is that she has parental responsibility for the child along with the birth mother. That also means that a named donor father does not have that status.
There are many ways in which single gay men and lesbians, or same sex couples, can have children. These range from adoption to surrogacy, IVF at a licensed clinic and, most commonly, informal arrangements often between friends at home. Gay men may choose to become parents as a couple through a surrogacy arrangement (see Surrogacy for further information).
Same sex adoption and surrogacy are fraught with technical issues which can trap those who have not taken advice. Informal arrangements commonly arise when, for example, a gay man agrees to have a child with a lesbian couple. If the couple are in a civil partnership or marriage at the date of conception then, as explained above, the two mothers are the only parents as a matter of law even though the gay man is the biological father. At present the law does not give recognition to more than two parents.
Where relationships between parents break down, arrangements for the care of the child and for time with his/her parents have to be resolved. This can be dealt by negotiation, whether through mediation or otherwise, or by litigation if necessary. The partners in Hughes Fowler Carruthers have acted in leading cases involving same sex parenting, namely A v B and C, and Re G; Re Z. We have considerable experience in addressing and resolving the many issues that can arise, and have the expertise to take matters into court if no other route can be found.
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