An increasing number of gay people – both individuals and couples – are having children. There are various ways of doing this, with adoption, surrogacy and sperm donation being the most common. There are also a growing number of LGBT people with children from previous heterosexual relationships who are now forming new families with same sex partners.
While all of these options can result in a positive environment for gay parents and their children, there are a number of legal issues that need to be considered to ensure your rights as a parent and your children’s best interests are protected.
In this article we will cover the key things prospective LGBT parents need to think about when planning on starting a family, or forming a new family unit with their existing children and a same sex partner.
Parental rights for gay people
One of the key issues for any parent to understand is the concept of ‘parental responsibility’. Having parental responsibility for a child means you have the legal right to make decisions about your child’s upbringing, for example where they live, where they go to school and what medical treatment they have. It also means you are responsible for providing a home for your child, protecting them and supporting them.
For same sex couples, the question of who has parental responsibility can be complex, especially if the children are from a previous heterosexual relationship. Depending on how you go about starting a family, you may automatically have parental responsibility, or you may need to make a parental responsibility agreement with the child’s birth mother or apply to a court for a parental responsibility order.
Establishing parental responsibility is important to ensure you can provide a stable home for your children and the support they need for a healthy, happy upbringing.
Gay people have the same legal right to adopt children as heterosexual people and gay adoption is becoming increasingly common. To adopt a child, you must be aged 21 or over and can be single, married, in a civil partnership or a couple living together without being married or in a civil partnership. You (or your partner if adopting as a couple) will need to have a fixed address in the UK and have lived in the country for at least one year before starting an adoption application.
When you adopt a child, anyone who currently has parental responsibility for the child will need to agree to the adoption (unless the child has already been legally removed from their parents). Once the adoption has taken place, parental responsibility will pass to you and the child’s birth parents will no longer have parental responsibility for the child.
If using an adoption agency, there is a formal application process to go through, including preparation classes, assessments by a social worker and police checks. If adopting privately the process may be less formal. Whatever route you take, to make the adoption legal you will need to apply for an Adoption Court Order. Once this order is granted the adoption will be permanent, you will get an adoption certificate, which replaces the child’s original birth certificate, and sole parental responsibility will be transferred to you (and your partner if adopting as a couple).
Adopting your partner’s children
If your partner has children from a previous relationship that you want to adopt, you will still need the consent of everyone with parental responsibility. If the child’s other birth parent has parental responsibility and objects, you may need to apply to a court to resolve the issue.
To adopt your partner’s child or children, they must have lived with both of you for at least 6 months and you will need to inform your local council of your intentions at least 3 months before applying to a court for an adoption order. You will also need to undergo an adoption assessment where the court will ask your local council to provide a report on your partner, the child (or children) and the other birth parent.
If the adoption order is granted, this will take parental responsibility away from the child’s other birth parent and anyone else with parental responsibility (except your partner). If you and your partner want both you and the child’s other birth parent to have parental responsibility, you can apply for parental responsibility without adopting the child, either with the other birth parent’s consent or without it.
Surrogacy for same sex couples
Gay men wishing to start a family often like the idea of surrogacy as it allows them to have children they are genetically related to. Surrogacy arrangements are legal in the UK, but it is illegal to pay someone to act as a surrogate for you.
When considering surrogacy, it is important to understand that the child’s birth mother will automatically have parental responsibility for the child and is under no obligation to give the child to you once it is born, even if the child was conceived with a donor egg.
To become the child’s legal parents, you will either need to apply for a parental order or adopt the child. To apply for a parental order, you must be genetically related to the child and be in a relationship where you and your partner are either married, civil partners or living together. If a parental order is granted, the birth mother’s parental responsibility will be extinguished.
Egg and sperm donation for gay couples
Sperm donation is commonly used by lesbian couples and individuals who want to become pregnant, while donor eggs are often used by gay people of both genders where there are fertility issues or when using a surrogate.
If using egg or sperm donation, you need to be aware that while the birth mother of a child will always automatically have parental responsibility, the sperm donor may or may not be considered the child’s legal parent depending on the circumstances.
If the sperm was donated through a clinic licensed by the Human Fertilisation and Embryology Authority (HFEA), then the donor will not be the child’s legal rather or have any rights or responsibilities with respect to the child.
However, if the sperm comes from an unlicensed clinic, or if you have sex with a man to become pregnant, the sperm donor will be the child’s legal father. While this does not mean they will automatically have parental responsibility, it does mean they could apply for parental responsibility if they choose to, which could cause complications for you and your child.
Co-parenting for gay parents
One option being used by a growing number of LGBT people is the concept of co-parenting. This is where two single people, often a gay man and lesbian women, agree to have a child together, both acting as parents while not being in a relationship together. Alternatively, a same sex couple may agree with an opposite sex friend or couple to have a child together and all act as parents.
These arrangements can introduce legal complexities, as the birth mother will be the only one who automatically has parental responsibility, unless she is married or in a civil partnership, in which case her partner will also have parental responsibility. It is therefore a good idea to have a co-parenting agreement in place, to ensure there is a clear legal framework for how the child’s upbringing will be handled. The parents who do not automatically have parental responsibility will also likely want to apply for this.
Parental leave for same sex couples
Whether you or your partner are giving birth to a child, adopting, or applying for a parental order for a child born via surrogacy, you have the same rights to parental leave. Under standard parental leave rules a mother is entitled to 52 weeks’ maternity leave when giving birth, while if you are adopting or using a surrogate you will also be entitled to 52 weeks’ parental leave.
Under Shared Parental Leave rules, this 52 weeks can be shared between a couple having children together, for example, you could both take 26 weeks, or one of you could take 13 weeks and the other 39. In order to qualify for Shared Parental Leave, both you and your partner need to be named as the child’s legal parents and you will both need to meet the minimum requirements to qualify for parental leave.
Get expert legal advice on same sex parenting
If you are considering your options for starting a family, or need assistance with the legal aspects of adopting, surrogacy, egg and sperm donation, or anything else related to LGBT parenting, we can help.
Crisp & Co’s family law solicitors have many years of experience helping LGBT people deal with all issues related to gay parenting. We offer a sensitive but practical approach, making the legal process of establishing a family as fast, simple and stress-free as possible, so you can focus on creating the ideal environment for you and your children.
Talk to our expert LGBT family law solicitors now by calling 020 3797 4952 or use the enquiry form below and we will get back to you promptly.