Female same sex couples having children using fertility treatment historically came across legal hurdles to both parties being recognised as legal parents. Whoever gave birth to the child would be the child’s “legal mother”, but the other parent would not be recognised as a legal parent automatically. Legal parentage is very important as it provides a parent with parental responsibility. Only people who hold parental responsibility for a child can make important decisions for their child. Such decisions include whether a child should receive medical treatment.
The Human Fertilisation and Embryology Act 2008 allows both women to be recognised as legal parents if: –
In any event the non-gestational parent (the person who does not carry the baby) must consent to the other parent (the person carrying the baby) receiving the fertility treatment. Consent does not have to be in writing although fertility clinics in England and Wales will not offer treatment without it.
Issues can arise where fertility clinics outside England and Wales are used. This is what happened in the recent case of Re S (Children: Parentage and Jurisdiction) 2023 EWCA Civ 897. In this case, the couple were civil partners, and the fertility treatment took place in an American clinic. Because no written consent was given by the non-gestational parent, the court had to look at all of the circumstances of the case to decide if she was in fact the legal parent. The Judge looked at her involvement in the selection of the sperm donor, attendance at the birth. The support given to the gestational mother and involvement herself in the children’s lives.
The decision has been hailed as a historic win. By the time that the case came before the English courts the children were living in the Middle East where same sex relationships are criminalized and a non-biological same sex parent would therefore not be able to apply to the courts in the Middle East for any orders in relation to the children.
Our Family Law team are experienced in LGBTQ family law and are happy to offer legal guidance to same sex couples who are looking to start a family together. For more information, please contact one of our solicitors.
The above is meant to be only advice and is correct as of the time of posting. This article was written by Louise Eady, Partner in the Family team at Pinney Talfourd LLP Solicitors. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of August 2023.