It is important for LGBTQ+ families to understand their legal rights particularly surrounding who has parental responsibility and how parental responsibility can be obtained.
Our previous article Parental Responsibility: What Does It Really Mean in Law? sets out the definition of parental responsibility and gives examples of what parental responsibility covers.
What are the key legal rights of LGBTQ+ parents?
A key legal consideration for parents starting a family will be who will be treated as the child’s legal parents, and who will have parental responsibility as the law differs for birth parents, adoptive parents, and intended parents via surrogacy.
Who has parental responsibility for the child will depend on how the child was conceived amongst other factors.
What are the rules for embryo donation, egg donation and sperm donation and parental recognition?
The mother who gave birth to the child will have parental responsibility.
If the birth mother and their partner are married or in a civil partnership at the time of the embryo, egg or sperm being placed in the birth mother then the partner will be treated as the second legal parent (unless it is shown that they did not consent) and have parental responsibility.
If the birth mother and their partner are not married or in a civil partnership at the time of the embryo, egg or sperm being placed in the birth mother then the partner will not automatically be treated as the second legal parent or have parental responsibility. Parental responsibility can however be obtained if certain conditions are met and additional steps taken. Previous articles on embryo donation, egg donation and sperm donation in our parental responsibility series can be accessed here.
What are the rules for surrogacy and parental recognition?
The surrogate will be treated as the legal mother unless and until an order changing that is made by the court. If the surrogate is married or in a civil partnership, their spouse or civil partner will be treated as the second parent (unless they did not consent to the arrangement).
The intended parents will therefore need to make an application to court for an order to transfer legal parenthood and parental responsibility from the surrogate (and her spouse or civil partner if she has a spouse or civil partner) to them. This process takes place after the birth.
Whilst surrogacy agreements are not legally binding, it is advisable to enter into a written surrogacy agreement at the start of the surrogacy process. The surrogacy agreement can set out how the arrangement will work as well as what is agreed in terms of making an application to Court for a parental order after the birth.
Please see our previous article Surrogacy and Parental Order for more information.
What are the rules for adoption and parental recognition?
An adoption order transfers the legal rights of the biological parents to the adoptive parents. An adoption order also terminates the biological parents’ parental responsibility and transfers it to the adoptive parents.
Please see our previous article Parental Responsibility and Adoption for more information.
How does adoption work for LGBTQ+ couples?
Under the Adoption and Children Act 2002, same-sex couples and individuals have the same legal rights to adopt a child as opposite-sex couples. There should not be any differences in the adoption process compared to opposite-sex couples as the eligibility criteria is the same and adoption agencies cannot discriminate on the grounds of sexual orientation.
How are child arrangements handled for LGBTQ+ families?
Parents who separate do not necessarily need a Court order setting out what the arrangements for the children will be following the separation. Parents only need to involve the Court if they cannot agree child arrangements between themselves. Our previous articles Do you need a Court Order to see your children? and Separating Parents – do I need a Court Order? consider this point in more detail.
If parents are able to agree arrangements between themselves without involving the Court this can be positive for co-parenting going forward. Unfortunately, this is not always possible and if arrangements cannot be agreed, a parent may decide to make an application to the Court for a Child Arrangements Order. If the parent wishing to make the application does not have parental responsibility, they may need the permission of the Court to make this application (depending on the facts of the case).
A non-biological parent is not disadvantaged in a Court case regarding child arrangements purely because they are not the child’s biological parent. Likewise, a biological parent does not automatically have priority. The Court will consider the checklist contained in Section 1 of the Children Act 1989 which is known as the “welfare checklist” and which focuses on the child and their needs. The focus of the Court when determining what the arrangements for a child should be is what is in the child’s best interests.
How our team supports LGBTQ+ families in parenting and family law matters
Legal advice can help navigate adoption, surrogacy, egg donation, sperm donation and embryo donation and it is advisable to seek legal advice at the outset. Our team can also advise on who has parental responsibility for a child and how parental responsibility can be obtained for parents who do not automatically have parental responsibility.
Legal advice should also be sought early on in the event of a dispute about contact. If you need advice for this please get in touch with our Family Law team.