There are many ways for same sex couples to have children and fulfill their dreams of having a family. The parenthood and fertilisation laws are developing to keep pace with each other, but it is important to seek legal advice on matters where you are unsure.
Same Sex Female Couples
A same sex female couple could choose to have both their names placed on the birth certificate by various routes. If you are married or in a civil partnership then there is an assumption in their favour that the other party is the parent, but the biological father’s consent should be obtained for the benefit of clarity.
Alternatively or if you are not married/civil partners, you can use a licenced UK fertility clinic and be afforded the same opportunity as above. You must be very careful to ensure that you both and the planned sperm donor have signed all the correct forms though or you may miss the statutory conditions.
Same Sex Male Couples
If a gay male couple wish to have sole parental rights over the child, this can be done through either adoption or, if you are a couple, by applying for a Parental Order. These orders are designed specifically for when a surrogacy has taken place and are similar to an Adoption Order in that it ‘reassigns’ parenthood but the significant difference is that an entirely new birth certificate is issued replacing the birth parent with that of the biological father and the intended parent.
This means that for a same sex male couples who have used a surrogate, this is an important step as they can be granted full recognition and status as the child’s legal parents with all the associated rights and responsibilities. Even where a foreign birth certificate has been obtained, without a Parental Order then the English courts consider the birth mother to have retained retain parental responsibility for the child and all rights associated with that to make decisions for the child. Read more about Parental Orders in our associated articles section, or call and speak to Natalie, our lead practitioner in this area.
If your partner fathers a child, you will have to adopt the child in order to hold the same rights and obligations as a natural parent and be on a par with your partner. Being in a same sex marriage or civil partnership will be a factor that is taken into consideration when granting the adoption Order in your favour. While you can also adopt as a single person, it may be more challenging to persuade the local authority that adoption is in the child’s best interests.
As of 6 April 2010 however, the law is facing a significant transition as it is extending the right to apply for a Parental Order to same sex couples.
These are important changes in the recognition of same sex couples and their status as parents and it is quite clear that the law is evolving to offer gay fathers a secure foundation with which to bring up the child, with them acquiring the same status and rights as heterosexual couples and lesbians. The pitfall is, as with any arrangement, the matter comes down to consent and therefore it is vitally important that if choosing a surrogate mother that advice is sought and your positions are clear beforehand to try and prevent any difficulties which may arise in the future.
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