For LGBTQI individuals and couples deciding to have children, sperm donation, egg donation and surrogacy are increasingly popular options. While these methods can be an effective and emotionally satisfying way to create a family, there are certain legal implications you need to understand when considering these options.
Parental rights for LGBTQI people
When having children through sperm donation, egg donation or surrogacy, it is really important to understand the legal concept of ‘parental responsibility’, including what these means and who it applies to.
Parental responsibility gives you the right to make key decisions about a child’s upbringing and welfare e.g. where they will live and go to school, and what medical treatment they will have, as well as giving you a legal duty to provide for, emotionally support and discipline them.
For LGBTQI families, the issue of who has parental responsibility can be complicated. In most cases, the woman who gives birth to a child will have parental responsibility, as will anyone who is married to or in a civil partnership with the birth mother.
A female second parent can be named on the birth certificate giving her parental responsibility, while a male parent who is not genetically related to the child will need a parental order from a court to be registered as the child’s parent.
Using surrogacy, sperm donation or egg donation can all also complicate the issue of parental responsibility.
Legal implications of surrogacy
Surrogacy is a common option for gay men who wish to have a child they are genetically related to. Surrogate pregnancies are legal in the UK, but you cannot pay someone to act as a surrogate for you (although you may cover reasonable expenses).
A key point to understand is that the surrogate mother will automatically have parental responsibility for the child and is under no legal obligation to give the child to you once it is born.
The baby’s biological father can be named on the birth certificate, giving them parental responsibility from birth, but you will need to apply for a parental order from a court to remove parental responsibility from the birth mother (which she will need to consent to) and to give parental responsibility to a second male parent.
Legal implications of egg donation
If you use a donated egg to conceive a child, the person who carried and gives birth to the child is considered their birth mother and they will automatically have parental responsibility. The egg donor has no automatic right to parental responsibility.
A second female parent can be named on the birth certificate to give them parental responsibility, or this can be granted through a parental responsibility agreement with the birth mother. If the second female parent is married to or in a civil partnership with the birth mother, she will automatically have parental responsibility.
Legal implications of sperm donation
Sperm donation is a popular option for lesbian woman choosing to have a baby, either as an individual or as part of a couple. As long as you use a fertility clinic licensed by the Human Fertilisation and Embryology Authority (HFEA) to conceive the child, only the birth mother (and her partner depending on the circumstances) will have parental responsibility.
However, if the baby is conceived without using a licensed fertility clinic (e.g. by having sex with a male friend who agrees privately to act as a donor) then the sperm donor may have a case to apply for parental responsibility. However, they will not automatically have parental responsibility and would need to be able to demonstrate a meaningful relationship with the child to make a successful application.
Crisp & Co’s LGBTQI family law solicitors have many years of experience helping LGBTQI people deal with all issues related to gay parenting. Our sensitive but practical approach makes the legal process of establishing a family as fast, simple and stress-free as possible, allowing you to 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.