LGBT+ Family Law

UK: If the birth mother/parent is in a civil partnership or married their partner is the other legal parent and will have parental responsibility & be able to be on the birth certificate.

If the birth mother/parent is not in a civil partnership or married, the birth mother/parent’s partner is not recognised as the other legal parent (the donor will be the other legal parent). Therefore you would need the known donor to relinquish his rights & the partner/other parent would need to adopt the child.

USA: If you use a known donor the laws can vary state to state. In some cases, the donor will have rights and, in others, not. Donor contracts may or may not protect your rights as a parent. If a contract is signed by both the donor and the woman/person taking the sperm, but later the donor decides he wants rights to the child, he may get them. Laws about children who are a result of insemination are not always decided by contract. According to some courts, DNA plays a more important role.

Overall, there are no absolute clear standards regarding home insemination. The best thing to do is to understand the laws of the state you reside in and also any country-wide laws. For legal resources, check with the local courts where you live, talk to a lawyer, as it may differ from state to state & you need to ensure you, the donor & especially the child are protected for the future.

EUROPE: The laws differ by country. There are many countries whereby you cannot have any type of fertility treatment to have a child as a LGBT+ couple, however countries such as Spain, Greece & Finland among others do provide it & many women & people travel there for fertility treatment abroad.

UK: The birth mother/parent and their partner (if the relevant forms are signed at the clinic) will be the legal parents. The forms are the HFEA WP form (the birth mother/parent signs) & the PP form (the partner/other parent signs) if in he UK. If you are married or in a civil partnership the birth mother/parents partner will have parental responsibility, if not the birth mother/parents partner can acquire parental responsibility if named on the birth certificate.

USA: Across the USA, all States act autonomously in regards to family law, you need to check with your State Law Department prior to starting your family what the regulations are. In some States in the USA, even if you are married, AND on the birth certificate (on there because of marriage) you may still have to adopt your child- as the Non-birthing parent, or even the Biological but non-birthing parent in a Reciprocal IVF cycle so ensure you confirm first before you start your journey what both or all your rights are over any future children.

EUROPE/ROW: Again like the US, fertility laws across Europe & the rest of the world differ & are not all regulated by the same governing body, so when researching your clinic you need to ask who they are regulated by & what laws protect you. Whatever country you are originally from, your own country laws do not cover you when having treatment abroad & this is something to consider.

This is a formal legal process. An Adoption Order changes and defines who a child’s legal parents are and grants parental responsibility. The process can be complex but find this online overview helpful – https://www.gov.uk/child-adoption/overview

You can apply to go through the adoption process to adopt a child or to adopt your child if you are not married or in a civil partnership & undergone Home AI & wish to be the child’s other parent.

If you are a trans parent (the term inclusively cover transgender, non-binary, gender diverse & other non cisgender identities), you may want to understand how any change in your legal gender will affect your legal status as your child's parent.  If you are conceiving a child, you may also want to understand whether your gender identity can be appropriately reflected on your child’s birth certificate i.e. whether you will be recorded as your child's mother, father or parent.  UK law does not address all these issues fully &, at least at present, this may mean that you do not have the correct parental title.

After you transition you will still be your child’s legal parent. Section 12 of the Gender Recognition Act states: “The fact that a person's gender has become the acquired gender under this Act does not affect the status of the person as the mother or father of a child.”

This protects the existing legal parenthood of trans parents who have children before they change legal gender.  It means that you will remain your children's legal father if you become legally female, and you will remain your children's legal mother if you become legally male. That may not reflect how you identify your name & relationship with your child, but you will not lose any legal status or rights in respect of your children as a result of changing your legal gender. It is not possible, under the current law, for your children’s birth certificates to be changed to include your revised name or legal gender.

Under English law, the surrogate is always treated as the legal mother/parent of a child at birth. If the surrogate is married or in a civil partnership, her/their husband, wife or civil partner is treated as the child’s second parent. This excludes the intended parent(s) from having any legal status at birth. If the surrogate is not married or in a civil partnership at the time of conception, the donor would be treated as the child’s legal father.

Parents who enter into a surrogacy arrangement may apply to the court within six months of their child’s birth for a ‘parental order’ to acquire parenthood. Parental orders are designed specifically for surrogacy situations, and have the effect of extinguishing the status of the surrogate mother (and her husband, wife or civil partner), and granting full parental status to the applicant/s.

Following the grant of a parental order, the child will be issued a new birth certificate naming the applicant/s as the child’s parent/s. LGBT+ couples are able to apply regardless of whether or not they are civil partners or married, but if they are not in a civil partnership or married they must be living as partners in an enduring family relationship if they wish to apply jointly. Single parents will shortly become eligible to apply for parental orders provided they are the biological parent of their child.

It is important to obtain a parental order since without one their surrogate will remain their child's legal mother/parent and, if the child is born outside the UK, they will only have limited status in the UK to make parental decisions.

To obtain a parental order, the court will have to be satisfied that the following conditions have been met:

The applicant, or if a joint application, one of the applicants is the child’s biological parent.

The applicants are over 18.

The application is made within six months of the birth (or six months of the law changing for single parents who were excluded from applying until 2019*), although there have now been a few cases where late applications have been permitted.

The applicant, or if a joint application, at least one of the applicants, is domiciled in the UK.

The child has his or her home with the applicant/s.

The surrogate (and her husband, wife or civil partner) consent fully and freely to the order being made.

The surrogate has not been paid more than reasonable expenses or, alternatively, the court agrees to authorise any payments which have been made.

Surrogacy arrangements are legally complex and the courts consistently recommend that anyone considering embarking on surrogacy obtains specialist legal advice at the outset.

Co-Parenting

A child cannot have more than two legal parents in the UK. Yet limited parental rights can be granted to other people involved in the child´s upbringing. A man and a woman who are not involved in a relationship may decide to have a child together and in a co-parenting configuration involving both their partners, or the partner of only one of them. From the beginning, all intended parents involved should decide who will be named on the birth certificate as legal parents (options are limited by the law though) and who will have to apply for parental responsibility.The law defining who the legal parents are in the case of an intended co-parenting arrangement can be tricky, as they depend on the marital status of the birth mother/parent as well as on the manner in which the child was conceived. Therefore, it is always advisable to establish a co-parenting agreement between the parties, which, although not considered as a binding contract by the law, may help solve possible future issues.