Throughout June, in celebration of Pride Month, Lewis Chatten of our Family department will prepare a series of articles focusing on a specific LGBTQ+ topics in the context of family and child law. Throughout this article, Lewis specifically focuses on LGBTQ+ parenthood and the law surrounding surrogacy, IVF and a briefly considers adoption orders.
Consideration is to be given as to how the child was conceived, i.e. was this through IVF, surrogacy, or another method. The above variables will have an impact on who is considered the legal parent of a child.
Being considered a legal parent entitles you to apply for certain orders relating to the child and so it is very important to establish this at the outset of a case.
At the time of writing, in law there can only be 2 legal parents (although there can be numerous people with “parental responsibility”). If a child is conceived through assisted reproduction (IVF), special rules will apply as to who is considered the legal parent(s).
Currently the law states that the birth mother will be a legal parent of a child, even where she has conceived through the use of IVF, donor eggs or donor sperm. If the birth mother is married, her spouse, whether male or female, will also be considered the legal parent of the child (unless another individual has been nominated as the second parent at a registered IVF clinic). This works very well for lesbian couples who wish to conceive with the assistance of a sperm donor. In this scenario as long as the couple use a registered fertility clinic both women will be considered the legal parents of the child.
However, a same sex male couple may wish to use a surrogate mother to carry and birth their child. As already mentioned, the birth mother and her spouse, if she is married, will become the legal parents for the child. This is not particularly helpful where a surrogate has been used for the above reason. It will be necessary for the intended parents to be recognised as the legal parents of the child and this can be achieved through a “parental order.”
Legal Parenthood is different from parental responsibility. Legal parenthood names an individual as the parent of a child and there can be only 2 legal parents for a child. Parental responsibility is essentially all the rights and obligations an individual has to make decisions on behalf of a child whilst they are a minor, these decisions include (but are not limited) to consenting to medical treatment, choosing which school the child will attend, and who the child will have contact with.
Whilst it almost always follows that a legal parent will have parental responsibility for a child, however it is not necessarily the case that someone with parental responsibility is the legal parent.
Obtaining Legal Parenthood
There are only two ways to diminish legal parenthood under English and Welsh law. This is either through (i) a Parental Order or (ii) Adoption.
As already mentioned, a same sex male couple may instruct a surrogate to carry and birth their child however upon that child’s birth the surrogate mother will be the legal parent for that child even though she is not the intended parent or indeed she may not have any biological link to the child if a donor egg has been used.
Obtaining Legal Parenthood – Parental Orders
A Parental Order, if made, will diminish the birth parent(s) of their legal parental status and award it to the intended parents. These orders can only be made under the strict criteria, one such criteria being that at least one of the intended parents MUST be the biological parent of the child.
If the strict criteria is made out, the court’s biggest consideration will be the child’s life long welfare. An application for a Parental Order cannot be made until 6 weeks after birth but must be made no later than 6 months. This rule has however often been stretched and out of time applications have succeeded although it remains best practice to make the application within the recommended timescale.
If a Parental Order is made in favour of the intended parents, then the birth parent(s) will no longer be considered the legal parent of the child and they will no longer have parental responsibility for the child.
It is important to note that “commercial surrogacy” is not allowed in England and Wales. No more than reasonable expenses must have been paid in order to instruct a surrogate however the court does have the power to authorise payments retrospectively.
Obtaining Legal Parenthood – Adoption
If a parental order is not available, then the closest alternative is an adoption order. Once an adoption order is made the intended parents will be awarded parental responsibility for the child and the birth mother (and her spouse if married) will have their parental responsibility diminished.
The law of adoption can be complicated, especially when looking to adopt a child who was born as a result of surrogacy, because this area of law was not designed for surrogate children. It can however be a helpful way to obtain legal parenthood when an out of time application for a Parental Order has not succeeded.
It may be that a couple (or a single person) may wish to adopt a child who is of no biological link to them i.e. a child not born through surrogacy or a child who has been removed from their biological family due to safeguarding concerns. If this is the case then those individuals should contact either the adoption agency that forms part of their local council or a voluntary adoption agency. Those services will be able to take you through the appropriate process. Once an adoption order has been made the child will be placed with their “forever family” and the adoptive parents will be considered the child’s legal parents.
It is important to note that surrogacy agreements are not binding in England and Wales so there is often an underlying concern that the surrogate mother will not “hand over” the child to the intended parents. It should also be noted that one of the criteria for making a parental order the legal parents (the surrogate mother and her spouse if she is married or if using a registered fertility clinic, the other nominated parent) MUST consent to the application and the Court is not able to “dispense” with the consent of the child’s legal parents.
Should a situation like this occur matters can be dealt with the assistance of a Child Arrangements Order. In Child Arrangement proceedings the Courts paramount consideration will be the welfare of the child, this is different from the Court’s paramount consideration in a Parental Order or Adoption Order proceedings which is “the child’s lifelong welfare.”
Where a Child Arrangements Order is made legal parenthood will not be diminished but the Court has the power to award parental responsibility to the intended parents so that they are involved in decision making for the child and entitled to either have the child living with them or having contact to the child (depending on the Courts decision).
It is worth noting that there often is no dispute and the surrogate mother and her spouse if she is married will usually consent to the making of a parental order. However, Child Arrangement Order are a good alternative position should a situation like the above occur.
We Can Help
If you would like specific advice on obtaining a parental order or would like some advice about your parental rights do not hesitate to contact Lewis Chatten by calling the office on 0121 704 3311 or alternatively you can email Lewis directly at firstname.lastname@example.org.
Legal Aid may be available and Lewis would be happy to discuss this with you. If Legal Aid is not available Lewis will be able to offer you one of our competitive fixed fee appointments.