Becoming a parent who identifies as lgbtq can get complicated when it comes to the law. Bellow we have put together a simple guide as a starting point for you to explore your possible options.
So what does it mean to be a legal parent?
A child can only have 2 legal parents. Being a legal parent means you will:
- Have a financial responsibility to the child.
- Be considered parent and child for the purpose of British nationality, inheritance and pension rights.
- Have the right to make important decisions about things like school, medical treatment and religious upbringing.
Who will be a child’s legal parent(s)?
The person who births the child will automatically be the child’s legal parent, even if they are not biologically related. They will be registered on the birth certificate as the ‘mother’.
Currently a trans male who births a child will be named on the birth certificate as the legal ‘mother’ even if their legal gender is identified as male.
The legal identity of the other parent depends on how the child was conceived and in what circumstances:
- If the child was conceived through intercourse or artificial insemination (not at a uk clinic) the other legal parent will be the biological father. However, if the birth parent is married or in a civil partnership at the time of conception and the child was conceived through artificial insemination, the partner is the child’s other legal parent.
- If the child was conceived at a licensed clinic the person not carrying the child can be the other legal parent even if they are not married or in a civil partnership. Both parents can be named on the birth certificate.
This means that if a child is not conceived at a clinic the second legal parent under uk law will be the biological donor. This gives them the right to be named on the birth certificate, giving them parental responsibility. When using a donor or surrogate outside of a licensed fertility clinic it is strongly advised that you seek legal advice.
If a clinic is used they will provide information on the legal implications of conceiving a child. It is mandatory that any intended parents attend a counselling session before treatment starts. Part of the session is to make sure parents to be fully understand the legalities of conceiving a child together using a donor.
Can the legal parent(s) be changed?
For many who identify as lgbtq+ becoming the legal parent(s) of a child can only happen after the child has been born.
Changing the legal parent(s) can be done by:
- Adoption.
- A court order granting parental responsibility.
In most cases the legal parent at birth will have to consent to the change. With the exception of social services interventions or biological father not able to be found or contacted.
A note on surrogacy:
- When the child is born the birth ‘mother’ will be the legal parent. Their spouse or civil partner will be the child’s second legal parent at birth unless they did not give their permission.
- If the surrogate is not married the biological father will be the child’s legal father.
- If conception takes place at a licensed clinic it is possible to nominate one of the intended parents as the second legal parent.
- The surrogate is responsible for registering the birth.
- The child can be given the intended parents surname on their birth certificate.
- It can take anywhere between 3 and 12 months for a parental order to be transferred to the intended parents.
- Once a parental order is made the birth will be re-registered with both intended parents recognised as the legal parents. A new certificate will be issued with the original birth certificate. It will be sealed and only accessible to the child when they are over 18.
A note on using a know sperm donor:
- If the conception does not take place at a clinic and the birth parent is not married to or in a civil partnership with the other intended parent, the donor will have the right to be listed on the birth certificate. This will make them the child’s second legal parent.
- If the birth parent is married when conception took place, the birth parents spouse or civil partner can be named on the birth certificate.
- It is often not intended for the donor to be considered the legal parent and there for his name would not be put on the birth certificate. However, he may decide that this is what he wants and he may have a right to be the legal father even if this was not your intended arrangement.
- It’s a good idea to have a solicitor draw up and agreement between birth parent and donor. It helps to record both parties intentions. Although not legally binding it can be evidence to use if there were any disputes in the future.
Notes on using an anonymous donor (via a clinic):
- Both intended parents can be legal parents from conception. They do not have to be married or in a civil partnership. They can both be on the birth certificate.
- From the age of 18 a donor conceived child has the right to access information about their donor. They can also find out if they have donor conceived siblings.
- An anonymous donor through a clinic will have no legal obligation to the child.
- Donations from a single donor can be used to create a maximum of 10 families.
This post is intended as a guide only. It is recommended that you seek legal advice regarding your own situation and options available to you.