Parental rights for same-sex parents
For many couples, starting a family is the next step in their relationship. However, for same-sex parents, establishing parental rights can be complicated.
There are many different ways that children can be introduced into a family. Whether that’s through artificial insemination, adoption, surrogacy, or donor conception, each path to parenthood has its own implications when it comes to parental rights.
It is important that same-sex couples have established who the legal and biological parents of their children will be, and who will hold parental responsibility. Current laws regarding parental responsibility are somewhat simplistic and what appears to be a straightforward arrangement may not immediately be recognised in law.
Unfortunately, not all same-sex parents have legal arrangements in place. This can cause complications if the relationship breaks down or circumstances change.
What is the difference between legal parenthood and parental responsibility?
Legal parenthood is not the same as parental responsibility, and one does not necessarily assume the other. It is possible for more than two people to have parental responsibility, but a child will only have two legal parents.
Being a legal parent determines whether you’re responsible for the child financially and whether the child will inherit your nationality. It also determines your right to make applications to the court if there is a dispute concerning the child. Legal parenthood is primarily about status in law. But being identified as a legal parent can also be important emotionally for both the child and the legal parent. If it is not your intention to be legally recognised, you should seek advice on this as soon as possible.
It is possible to be a legal parent without parental responsibility. For example, if you are the biological father of a child born overseas to a surrogate who is unmarried or not in a civil partnership, you will be the legal father for the purpose of British nationality, but will not automatically have parental responsibility to make decisions about your child’s care.
Parental responsibility relates to who has the rights and responsibilities to make decisions about a child’s care before they are 18 years old. This affects the more day-to-day decisions relating to a child’s care and upbringing, such as education, religion or medical matters. It is also possible to have parental responsibility without being a legal parent. For example, you may have care of a child born to a family member under a Special Guardianship Order. This would grant you parental responsibility alongside their birth parents. Alternatively, a step-parent can be granted parental responsibility alongside the legal parents.
How is parental responsibility determined for same-sex parents?
Where the parties are married or in a civil partnership at the time the child is born or adopted, both will automatically hold parental responsibility, regardless of gender. In any situation outside of this, other factors will affect this status.
Donor conception is particularly complex for unmarried parties as legal parenthood depends on their chosen method of donor conception, for example, whether or not a clinic is used.
Most clinics will require the parties to seek legal advice before beginning their journey to parenthood. Our fertility law specialists can advise both intended parents, together.
If you’re not married or in a civil partnership with your child’s other parent, you can still acquire parental responsibility. Whilst this can be more complex, planning and advice can help you achieve legal recognition. It is possible to apply for a Child Arrangements Order even if you are not a legal parent, but you will require the court’s permission, and the history of your relationship with the child will be considered.
How can I obtain parental responsibility?
If you are already a legal parent and want to obtain parental responsibility, you can enter into a Parental Responsibility Agreement with the other parent, or apply for a court order confirming this.
If you are not a legal parent, you will need to be connected to the child, for example, as a step-parent, to enter into a Parental Agreement with the other parent. Otherwise, it will be necessary to apply for a Child Arrangements Order.
What happens when same-sex parents separate?
When parents separate, one of the most important issues to resolve is what arrangements will be made for the children. These largely focus on where children live, how often they will see either parent and how this will take place. The court can be asked to resolve this and also to consider additional issues such as medical intervention or what school they go to. Parents with parental responsibility can make these decisions for the child.
Fortunately, if the separation is amicable and parents can make decisions themselves, child arrangements can be flexible to meet the needs of the child. It is important to communicate with one another and involve everyone in the decision making.
Where the parties are not married or in a civil partnership, legal rights will depend upon arrangements in place at the time of the child’s conception, or at the time any subsequent application was made.
Applying to the court for child arrangements
Where parties cannot reach an agreement, whether between themselves or via mediation, it may be necessary to apply for a Child Arrangements Order. Where this is required, the court will recognise each parent, regardless of gender.
If you cannot reach an amicable decision, our child law team can help you obtain an agreement or court order. Where an application is made, the court will prioritise the child’s wellbeing and apply specific considerations to determine matters. These will be focused on the needs of the child and the role of the parent, rather than their gender.
How we can help
Whether you need advice on establishing parental responsibility, formalising a surrogacy or donor agreement, or you have a child contact dispute after separation, our specialist child law solicitors are here to help.
Disclaimer: Although this only discusses those who fit into the binary of Male or Female, this information can relate to all LGBTQIA+ relationships, whether someone is trans, non-binary, agender or gender fluid, and is focused on the gender each parent identifies as.