Parental Responsibility and Same Sex Parents

Parental responsibility is a legal term which encompasses all rights and duties, powers and responsibilities which, by law, a parent of a child has in relation to that child. Parental responsibility gives a parent a right to have a say in major decisions affecting a child’s life such as education, religious upbringing, medical treatment, child’s surname and discipline.

All mothers, as defined as the woman who carried the child, automatically acquire parental responsibility.

All spouses and civil partners of the mother (as above defined) also automatically acquire parental responsibility.

In relation to heterosexual couples, unmarried biological fathers can automatically acquire parental responsibility by being named on the child’s birth certificate. If this has not occurred then the unmarried biological father could acquire parental responsibility by entering into a parental responsibility agreement with the mother, obtaining a parental responsibility order from the court or obtaining a child arrangement order specifying that the child lives with him.

But what about parents who do not fall within the above categories, such as those in same-sex couples who have used a surrogate and/or who are not married?

Two male parents

Where two male parents have a child born through surrogacy, then they may acquire parental responsibility by one of the following routes:

  • If one of the male parents is the “biological father” and is subsequently named on the birth certificate then he, like other unmarried fathers, will automatically acquire parental responsibility.

  • Two male parents may apply for a parental order from the court, which will reassign parentage to the intended parents after birth. In order to obtain a parental order, the two male parents must satisfy the criteria listed under Section 54 of the Human Fertilisation and Embryology Act 1990/2008. This criteria includes:

  • The gametes of at least one of the applicant parents have been used to bring about the creation of the embryo.

  • The applicants must be civil partners/married or two people in what the court considers to be an “enduring family relationship”.

  • The applicants must apply within 6 months from the date that the child was born (albeit the court has permitted a later application in exceptional circumstances).

  • At the time of the application the child’s home is with the applicant.

  • The woman i.e. surrogate who carried the said child has freely, with full understanding of what is involved, agreed unconditionally to the making of the parental order.

It should be noted that historically single parents could not apply for a parental order. However, in January 2019 the law was changed with the insertion of section 54A into the 2008 Act. The associated regulations came into force in December 2018. Single people are now able to apply for a parental order, provided that they are genetically related to the child (being the egg or sperm donor) and that the child lives with the applicant. Currently you can apply for a parental order of a child as a single person for a child of any age before 4 July 2019. Thereafter you must apply within 6 months of the child’s birth.

Parents should be warned that any “surrogacy agreement” entered into by the surrogate and parents will not be legally enforceable and the above criteria will still apply when seeking a parental order.

Two female parents

As noted above any woman, who has carried the child, is automatically treated as the child’s mother and thus has parental responsibility. If that mother is married or has a civil partner at the time of the fertility treatment/insemination then the said spouse or partner will be treated as the child’s legal parent, unless certain circumstances have arisen as detailed in the statute.

When the two female parents are unmarried and not in a civil partnership then as long as they sign the specified forms known as Form WP and Form PP, which details both their consents to the second parent being treated as the parent of the child, then the second parent can acquire parental responsibility in the same way as an unmarried father (see above).

What happens if none of the above is applicable?

In certain cases the second parent can apply for a declaration of parentage. This has been particularly useful given that there has been a number of cases where historically fertility clinics have either not followed the correct procedure or they have mislaid the relevant signed forms. Given that this issue has occurred more than once it is strongly advised that the two female unmarried parents retain copies of any relevant documents signed at the fertility clinic in case they need to rely upon the same in the future as evidence that such a document previously existed.