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Making a baby- the legal implications for same sex couples

The process of planning for a family can be stressful and complex for many, however, for same sex couples the journey to parenthood is that little bit trickier. It is important that same sex couples are armed with the correct knowledge at the beginning of their journey, because there are strict qualifying criteria that must be met in order for the parent who is not genetically related to the child to become their legal parent.

What does it mean to be a legal parent?

Legal parenthood is a lifetime commitment. You are financially responsible for your child, you can pass on your citizenship to them and your child can inherit your assets when you die.

A child can only have two legal parents and they will be registered on the child’s birth certificate.

In most cases, if you are a legal parent, you will also have parental responsibility. Parental responsibility means that you are responsible for how the child lives day to day and you can make decisions such as which school the child attends and what medical treatment they receive.

You do not have to be a legal parent to have parental responsibility and there is no limit on how many people can have parental responsibility for a child.

How do I become a legal parent?

Female same sex couples  

The birth mother is automatically the child’s legal parent and the following qualifying criteria must be met in order for the birth mother’s partner to become the child’s second legal parent.

If you are married or civil partners

  • The child must have been conceived by donor insemination or fertility treatments; and
  • You must have been married or in a civil partnership at the time of the treatment.

It is important to note that there is no requirement for the child to have been conceived via a licensed clinic in the UK, however, if the child is conceived through sexual intercourse between the birth mother and the sperm donor, the sperm donor will automatically become their second legal parent not the birth mother’s civil partner.

If the qualifying criteria are met either one of you can register the birth.

If you are unmarried and not civil partners

  • The child must be conceived through a licensed fertility clinic in the UK; and
  • You must have both made a parenthood agreement at the clinic.

It is important to note that if you use a sperm donor without going through a licensed fertility clinic in the UK, the sperm donor will automatically be the second legal parent. The birth mother’s partner must adopt the child to become their second parent. Once they have adopted the child, the sperm donor will cease to be a legal parent.

The birth must be registered jointly. If this is not possible, you must complete a statutory declaration of acknowledgment of parentage form or obtain a court order.

Same sex male couples

If you in a same sex male relationship, the most common way to become legal parents is via a surrogate. Surrogates are legal in the UK, however, you cannot advertise for a surrogate or pay them more than reasonable expenses. In order for you both to be legal parents, the following qualifying criteria must be met.

  • One of you must be genetically related to the child;
  • You must be married, in a civil partnership or living as parents;
  • The child must be living with you; and
  • You must both permanently reside in the UK, Channel Islands or Isle of Man.

You need to obtain a parental order from the court to register the child’s birth. This order must be obtained within 6 months of the child’s birth.

What if I do not meet the qualifying criteria to be a legal parent?

You will need to adopt the child to become their legal parent. Alternatively, you can obtain a parental responsibility order through the court. This does not mean you will be the child’s legal parent, but it will allow you to make day to day decisions for how the child is brought up.

If you are at the start of your journey to become a parent and want to discuss the legal implications and qualifying criteria, please contact our Family Team who are happy to help.

Image of a same sex couple with their baby (photo by karolina-grabowska on Pexels