Every family is different; every child’s upbringing unique. However, having more than two adults in a child’s life is not particularly uncommon in a modern family, as couples separate and new partners arrive on the scene. Step-parents have been an accepted form of parenting for a significant period of time.
In contrast to step-parents however, laws on co-parenting, which have radically changed this year, specifically affect individuals who wish to conceive a child together but are neither in a relationship or ever intend to be. A prime example of this would be when a gay man wishes to have a child with a lesbian. Unlike with surrogacy arrangements, there is no immediate intention of removing the rights of the biological parent from the arrangement but often a common wish to jointly raise the child.
The respective biological parents may also have a long term partner or Civil Partner of their own and wish this person to have a role in the child’s life. As there can only ever be two legal parents, it is important from the out-set people understand how the law addresses who can be on the birth certificate and retain this legal right. However, there is also the option to grant ‘Parental Responsibility’ which governs who can make decisions about fundamental aspects of the child’s life, such as medical procedures, education or religion. This can be granted to a person other than the legal parent.
The law can be complicated so we have set out a number of scenarios to demonstrate how it might work for you. In each scenario Sarah is the birth mother and Mark donates his sperm via artificial insemination.
Mark and Tony are in a Civil Partnership and Sarah, a single woman, conceives at home using Mark’s sperm. Mark and Sarah will be the legal parents as far as the law is concerned, can be named on the birth certificate and will be considered financially liable for the child. It is interesting to note that Sarah will have to give consent for Mark to be on the birth certificate otherwise an application to Court is needed. Once Mark is on the birth certificate he will have Parental Responsibility for the child and can make decisions in relation to education, health and religion.
Tony, in contrast, has no automatic rights or obligations towards the child. In comparison to surrogacy where you would want to remove the birth mother entirely, co-parenting is structured towards keeping the mother involved. Therefore, the best option available to Tony is to sign a Parental Responsibility Agreement with Mark and Sarah. He will then acquire the power to make decisions regarding the child while Sarah and Mark’s rights are left intact.
The facts are the same as above, but this time Sarah has a partner, Jane, and conceives the child through a licensed UK fertility clinic. As Sarah is not married or in a Civil Partnership, she will have the choice to nominate who the second legal parent is. This person would have to sign a number of forms at the clinic consenting before conception, but they then will become the legal parent and have the right to have their name added to the birth certificate upon application. It is important to note that the birth mother can choose who the second parent is and this can be Mark, Tony or Jane. They will then be the legal parent with financial liability. It is important to note that if no second parent is nominated Mark may automatically become the legal parent and acquire financial responsibility, but will not gain parental responsibility or appear on the birth certificate.
If Mark has signed the forms, he will be the legal father and so will be financially liable for the child, but he will still have to apply for parental responsibility either by having his name put on the birth certificate or ask the court to grant a Shared Residence Order (either with consent of the birth mother or not).
The facts are the same as above but this time Sarah is in a Civil Partnership with Jane. Whether the child was conceived at home or at a clinic, as the birth mother is in a Civil Partnership, Jane will appear on the birth certificate and be the second legal parent (there are only a few exceptions). Mark will not be the legal parent of the child and if he or Tony wishes to gain Parental Responsibility for the child, they will need to apply for a Shared Residence Order from the court. Provided that all the parties consent to this, this can be a relatively straight forward process. However, it is important to note that such an Order will still not place either Mark or Tony on the birth certificate.
The above is a simple overview of the law and may not specifically apply to your circumstances. However, whichever scenario applies to your own a Co-Parenting Agreement is strongly recommended between all the parties before conception. While this document is not strictly legally binding, it is incredibly persuasive if the court becomes involved at a later date and it can help to understand how the child will be raised and what each party’s roles and responsibilities will be. It can include issues ranging from who the children live with, contact, education and any religious influences. This will hopefully avoid any disputes at a later date and give important structure and stability in a growing child’s life.
The law in this area is intended to be flexible in order to adapt to each family’s unique circumstances. Regrettably as a direct result, the law is also fairly complex and so for each family the best course of action will have to be assessed on a case-by-case basis.
If you are looking to enter into a co-parenting arrangement, then seeking independent and professional legal advice before you embark on the process is essential. While fertility clinics are incredibly helpful, do not assume that they will know all the answers or understand the legal complexities of the situation.
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