Legal Parent Hood of Same Sex Couples

Mother in same sex relationship will not have to adopt her child and will be recognised as her child’s legal parent.

Adoption Order revoked

Recently the High Court revoked an Adoption Order after a mother was wrongly made to adopt her own child due to an error where the registrar incorrectly permitted only one mother’s name to be registered on the child’s birth certificate.

Sarah Osborne and Helen Arnold successfully, secured a high court ruling quashing an Adoption Order and declaring Sarah as the child’s legal parent. The couple  had a baby through IVF in 2014, however when they went to register their child’s birth, they were told by the registrar that Sarah could not be added as a parent as there “could only be one mother”.

The law states that same sex female couples who have a child through IVF, and who consent to being treated as parents, should be named on the child’s birth certificate. Despite this Sarah had to go through the emotional and lengthy adoption process in order to be recognised as the child’s legal parent.

There can only be two legal parents for a child.  Legal parenthood is a lifelong connection between a parent and their child, and it is important for your child to understand who their legal parents are.

In 2018, the couple conceived their second baby through IVF. This time, Sarah was registered as the legal parent on the birth certificate. As a result, they subsequently launched a High Court legal bid through the Cambridge Family Law Practice (CFLP), to get the adoption of their first child revoked and a new birth certificate issued with both mothers registered as the parents.

The presiding Judge, Mr Justice MacDonald said, “I am certain that this has caused great stress and upset and I hope that by making the order today can bring a form of closure to them.”

In 2020, the General Register Office admitted: “It would appear that the criteria for a joint registration showing both your details at the time of your child’s birth would have been met.”

The law for same sex parents:

In England and Wales if you are in a same sex relationship the person who gives birth will automatically be the child’s mother and be the legal parent.

If your Child is conceived after 6 April 2009 through artificial insemination, you as the birth mother and your civil partner/wife will be the child’s legal parents and will both have Parental Responsibility.  You must register both your names on the child’s birth certificate.

If your child is conceived after 6 April 2009 through sexual intercourse with a man, your wife or civil partner will not automatically have any legal rights to the child.

If the mother is married or in a civil partnership to a man who is not the sperm donor and the child is conceived through artificial insemination, then the mother’s husband or civil partner will be the legal parent.

In the case of a child conceived through artificial insemination to a mother who is unmarried and not in a civil partnership, the partner will not automatically be the legal parent, unless both have consented before treatment. This will apply even if they are in a same sex relationship and one partner is donating her eggs for the treatment.

If your Child is conceived before 6 April 2009 through artificial insemination, you wife or civil partner will not automatically have legal right to the child

The Human Fertilisation and Embryology Act 2008 (the “HFEA”) allows same sex couples, if they are in a civil partnership or are married when the child is conceived, to be the legal parents of a child conceived through artificial reproduction, to the exclusion of the biological father.   The biological father has neither rights nor responsibilities for the child.

These provisions were introduced to ensure that same sex couples are on an equal footing with heterosexual couples.

What is a parent?

The concept of parenthood in English law is a both dynamic and ever-changing. The landmark case of Re G(Children) (Residence: Same Sex Partner) [2006] UKHL 43 provided a broad view of parenthood, acknowledging that genetic or biological parenthood was not the only form of “natural” parenthood.

What is legal parenthood?

Legal parenthood can only be held by two individuals at any one time and can be genetic, gestational or social parents (or a combination of all three), bringing with it core responsibilities and rights for the parents. Parenthood can be determined or changed by adoption orders and parental orders in the context of surrogacy.

Legal parenthood provides a lifelong legal parent-child connection which affects a wide range of areas such as your child’s nationality, inheritance and your financial responsibility for your child.

It is important for your child to be clear about who his or her legal parents are.

If you are in a same sex couple your partner should only be registered on the birth certificate if he or she is your child’s legal parent. If they are not the legal parent of your child, they might not have the right to make important decisions about things like their schooling, medical treatment and religious upbringing.

Fact List to consider being the Legal Parent

1. You only need to consent to legal parenthood if you are not married or in a civil partnership and are using donated sperm or embryos in your fertility treatment.
2. If you do not consent to legal parenthood or if there are errors on legal parenthood consent forms that you complete before commencing on the IVF, your partner or co-parent may need to go to court to obtain a declaration of legal parentage confirming that they are the child’s legal parent.
3. The birth mother is always the child’s legal parents.
4. Your clinic should help you to understand and consent to legal parenthood.

Speak to our Family Law experts

For more information about Adoption and Legal Parenthood please contact our expert Children Law team on 01895 207 882 or Sonal Parekh on sonal.parrekh@ibblaw.co.uk