Next year, the fiftieth anniversary of the first London Pride event will be celebrated. The ground breaking London event signalled the start of Gay Pride marches as a global movement and, in doing so, helped to create greater public awareness of, and support for, gay relationships. Admittedly it took another 32 years for the Civil Partnership Act 2004 to be passed, another year for the Adoption and Children Act 2002 to come into force (in 2005), and the Marriage (same-sex couples) Act to be passed in 2013.
21st Century families
Unlike 1972 when the prospect of gay partners having children was only considered a remote possibility, having a family now is as much part and parcel of a gay relationship as it is of a heterosexual one. However, there are more hurdles for same-sex couples to navigate when embarking on parenthood, not least in determining the child’s legal parents and deciding who should have parental responsibility. Whether or not the couple is married or in a civil partnership, how the child is conceived, and what co-parenting arrangements are desired are all factors that need to be considered. As a result, the law is not straightforward and there will be circumstances where taking legal advice will be a necessary part of any decision making, particularly when others are involved in creating a family.
What is a legal parent?
A legal parent is not the same as having parental responsibility. A child can only have a maximum of two legal parents, one of whom is always the birth mother, regardless of circumstances (including surrogacy) and will be named on the child’s birth certificate. The other legal parent is usually the genetic father but this can be changed depending on the method and place of conception. For instance, if the baby is conceived via fertility treatment at a licensed clinic, the wife / civil partner of the birth mother automatically becomes the other legal parent.
If unmarried or not in a civil partnership, the couple can decide who they want to be the other legal parent. If a child is conceived via a more informal arrangement, determining the other legal parent is less straightforward: if the mother is not married or in a civil partnership, then the biological father is the other legal parent. If the mother is married or in a civil partnership, then her spouse / civil partner will be the legal parent. Changing a legal parent can only be done by adoption or through a court order. If the birth mother is a surrogate then specialist legal advice is needed in order to remove her as the legal parent, which is beyond the scope of this article.
Unlike legal parents, the number of people who can have parental responsibility (PR) is unlimited, which can be helpful particularly if it is intended that the biological father and his partner are to be involved in raising the child. Nonetheless, it is only the birth mother who has automatic parental responsibility. If she is married or in a civil partnership, her spouse/civil partner will also automatically have parental responsibility. If the birth mother is not married to her partner, the latter can acquire parental responsibility by:
- Marrying the birth mother or entering into a civil partnership;
- Being registered as the child’s second parent;
- Entering into a parental responsibility agreement via the family court;
- Obtaining a parental responsibility order or a child arrangements order;
- Becomes the child’s guardian;
- Adopts the child.
Applying for a court order is usually only necessary if the mother and her partner cannot agree about the parameters for raising the child.
Other people involved in the child’s upbringing, such as the biological father who is not registered as a legal parent, can acquire parental responsibility with the agreement of the mother. However, if the birth mother does not want the biological father, for instance, to have parental responsibility, then he would need legal advice on applying for a court order.
Gay couples, both married and unmarried (but in ‘an enduring family relationship’), have been able to adopt children since 2005 and have exactly the same rights as heterosexual couples. Department of Education statistics on adoption show that 1 in 6 children adopted in 2020 were to same-sex couples, compared to 1 in 22 in 2012. Once a couple has formally adopted a child, they become their legal parents and have parental responsibility. Adoption is also an option for someone in an established relationship with the birth mother but who is neither married to, nor in a civil partnership with her.
Both the law and society’s attitudes towards same-sex couples and their desire to raise a family have changed out of all recognition since that first Pride March. Nonetheless, the issue of legal parentage and parental responsibility can be more of a challenge for a gay couple, depending whether the baby is conceived via IVF treatment or artificial insemination, whether or not the couple is married or in a civil partnership, and who else is likely to be involved in bringing up their children. Overall, gay couples have the same rights and responsibilities as heterosexual couples when it comes to having and raising children but the devil, as always, is in the detail.