Same sex families: Legal facts you need to know

The Human Fertilisation and Embryology Act 2008 changed the law on the rights of same sex parents, creating new rules for parenthood for lesbian and gay couples.

If you are a same sex couple and are thinking about having a baby, whether through donor insemination or IVF treatment or any other artificial insemination, it is important to obtain expert legal advice about your options.

Here, we will discuss what you need to know about the decisions you make at the time of insemination and following the birth of your child, to enable you to make the right choices for you and your family.

Please be aware that the rules only apply for children conceived on or after 6th April 2009.

if you are a lesbian civil partner at the time of the conception through artificial insemination, both of you as civil partners will automatically be the child legal parents. You must be civil partners at the time of conception; otherwise the rules do not apply.

The mother who is not going to be the birth parent can be named on the birth certificate. She will automatically have parental responsibility for the child, shared with the birth mother.

You will both be treated as legal parents as long as you conceive together through a fertility clinic in the UK licensed by the Human Fertilisation and Embryology Authority. You will both need to sign consent forms which will elect for the non-birth mother to be treated as a parent. These forms must be signed before the date of conception. If you conceive at a clinic outside of the UK, you will not be treated as joint legal parents.

The non-birth mother can only obtain parental responsibility where she is named on the birth certificate. If she is not named on the birth certificate; even where she is recognised as a legal parent; she will not be able to be involved in the major decisions in the child life.

If you have donated your sperm with the intention that you will parent the child with your civil partner, you can be treated as the legal parent. If you are named on the birth certificate as the child father then you will obtain parental responsibility and share this with the birth mother.

Your civil partner can obtain parental responsibility by entering into a parental responsibility agreement with both you and the mother.

You can obtain a child arrangements order through the court which will confer parental responsibility on you and your partner. This will not take away the parental responsibility of the birth mother.

If the couple are civil partners, you do not have any rights as a father. If the couple are not civil partners, your rights as a father may still be excluded in circumstances where the mothers elect the non-birth mother as a second parent, rather than a father. A child has no legal father where he/she has a mother and a second female parent. In circumstances like this it is advisable to consider entering into a Parenting Agreement.

A parenting agreement is an agreement between all parties involved with the conception of the child. It will set out the intentions regarding such issues as who will be the legal parents; who will have parental responsibility; who will be involved in the day to day decisions. The list is not exhaustive. The parenting agreement is not legally binding in itself but is likely to carry some weight in the event that a disagreement arises after the child birth. It is essential that you consider a Parenting Agreement prior to embarking on the conception.

You will not be treated as a legal parent where your sperm is donated through a licensed fertility clinic. You will have no financial responsibility to the child in this instance.

If you donate your sperm outside of a licensed clinic, i.e. to a friend then you may acquire recognition as a legal parent, depending on the circumstances of the females (see the information above: or Women.

The law is extremely complex on the issue of artificial insemination between same sex families and it is essential that you obtain legal advice before embarking on your family planning. All of our family solicitors are members of the Law Society Family Law panel and are experts on issues concerning same sex couples. If you would like to talk to us or to make an appointment, thenplease call 0113 201 4900. We have offices throughout the Leeds area and we can make arrangements to meet you at your convenience. Alternatively you can email us at: andrew.smith@emsleys.co.uk or gabbie.clasper@emsleys.co.uk

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