Legal Considerations for LGBTQ+ Couples and Parents
1. Introduction: Modern Families and The Law
It is often said that the law plays ‘catch-up’ with societal changes. And there is certainly some truth in that when it comes to the legal position of LGBTQ+ couples and parents in England and Wales, as we will see in a moment.
And it is not just societal changes with which the law must keep up. There are also relevant technological changes, for example in relation to human fertilisation and embryology.
In little more than a generation societal and technological changes have revolutionised the entire concept of what constitutes a ‘family’. Until relatively recently a ‘family’ might be defined as one man and one woman in a married relationship, with children of whom they are the biological parents.
Now, of course, we recognise many different types of family, including unmarried families, and same-sex families with children who may not be biologically related to their ‘parents’.
In this article we will examine the current state of the law as it relates to LGBTQ+ couples and parents, and we will also look very briefly at how the law may change in the near future.
As we will see, the primary issue relates to legal parenthood. We will therefore look at what this means and how it is acquired, considering in particular the law on adoption, surrogacy, and parental orders.
2. What is NOT different for LGBTQ+ Couples
Before we look at the special legal considerations that LGBTQ+ couples and parents must navigate, we should first take a moment to look at the ways that family law does not differ for them compared to heterosexual couples, lest this article gives the false impression that LGBTQ+ couples are somehow discriminated against by the law.
In fact, for the most part family law in England and Wales does not distinguish between LGBTQ+ and heterosexual couples, treating both exactly the same. In particular:
- Marriage and Civil Partnership: Both marriage and civil partnership are available to both opposite-sex and same-sex couples. All couples therefore can, if they choose, enjoy the benefits that these legal relationships provide. In particular, should the relationship break down, then either party may make an application to the court, seeking a full range of Financial Remedies, including in respect of property, maintenance, and pensions.
- Child Arrangements: If an LGBTQ+ couple have children, and both parties are legal parents of the children (see below) then, if they should separate, either parent may apply to the Family Court for a child arrangements order, regulating with whom the children live and, if with just one parent, what contact they should have with the other parent. A parent may make such an application even if they are not the biological parent of the children, and the court will essentially treat them in the same way as if they were a biological parent. LGBTQ+ couples who are legal parents therefore have the same rights in this respect as biological parents.
- Domestic Abuse: LGBTQ+ couples have access to the same legal protections from domestic abuse as heterosexual couples. The protections apply, for example, to couples who are or have been married, couples who are or have been civil partners, and couples who are or have been in an intimate personal relationship with each other.
- Unmarried Couples: Lastly, the law treats unmarried LGBTQ+ couples in the same way as unmarried heterosexual couples when it comes to property rights on relationship breakdown. As the law stands at present, they have no particular such rights, and are therefore treated in the same way as two parties who were not in a relationship. Unmarried LGBTQ+ couples may therefore wish to provide themselves with some protection, by entering into a Cohabitation Agreement (for details of which, see here).
3. Legal Parenthood and Parental Responsibility
Many people will have heard of the term ‘parental responsibility’, and many might assume that it means the same thing as ‘legal parenthood’, but parental responsibility and legal parenthood are actually two different concepts.
Whilst it is true that in most cases the legal parents of a child will be the same people who have parental responsibility for that child this is not always the case, although for the purpose of this article we do not need to consider such scenarios.
What we do need to understand, however, is exactly what legal parenthood and parental responsibility are. In simple terms:
Legal Parenthood: Is held by a maximum of two people, and lasts for life. The legal parents will appear on the child’s birth certificate (see below). The child is therefore the child of those parents, with all of the effects that go with that, such as nationality and inheritance. Legal parentage can be acquired via biological conception, assisted reproduction, obtaining a parental order following a surrogacy arrangement, or adoption.
Parental Responsibility: Is essentially the day-to-day responsibility to make decisions relating to a child’s upbringing, such as relating to their schooling, religious upbringing, or medical treatment. Parental responsibility lasts until the child reaches 18 years of age. Parental responsibility is automatically acquired by the mother, and by the father if he was married to, or in a civil partnership with, the mother at the date of the child’s birth. The father can also acquire it if he was named on the child’s birth certificate, if the parents both sign an agreement granting him parental responsibility, or if the court grants him parental responsibility.
4. LGBTQ+ Routes to Parenthood
There are a number of different routes to parenthood available for LGBTQ+ couples, of which the following are perhaps the most common:
- Donor Conception for Female Same-Sex Couples: What happens here depends upon whether or not the couple are married or in a civil partnership. If they are, then both the birth mother and her spouse/civil partner will be the legal parents, unless the spouse/civil partner did not consent to the conception. Both can be registered as the parents on the child’s birth certificate, and both will have parental responsibility for the child. If they were not married or in a civil partnership, then the birth mother will be a legal parent, and her partner will be also, provided the child is conceived at a UK licensed clinic, and both parties signed the necessary consent forms before the conception. The birth mother will have parental responsibility, as will her partner, if she is registered on the birth certificate.
- Surrogacy: Under the current law, the surrogate mother will be the child’s legal parent at birth. And if she is married or in a civil partnership her spouse or civil partner will also be a legal parent, unless they did not consent to the surrogacy arrangement. To become the legal parents, the intended parents (one of whom must be genetically related to the child – i.e. the egg or sperm donor) will need to apply to the court for a Parental Order, within 6 months of the child’s birth. The parental order transfers legal parenthood from the surrogate (and her spouse or civil partner if she has one) to the intended parents, and also gives them parental responsibility. Note that in 2023 the Law Commission recommended that the law on surrogacy be reformed, to allow the intended parents to become the child’s legal parents from birth. As yet, the Government has not decided to take this reform forward, although a recent petition calling for the reform has received sufficient signatures for it to be considered for debate in Parliament.
- Adoption: LGBTQ+ couples can, of course, apply to adopt a child, just as heterosexual couples can (it is against the law for lesbian and gay couples to be discriminated against by adoption agencies). The couple do not need to be married or in a civil partnership, so long as they are living together in a long-term relationship. The adoption order will make them the legal parents of the child in place of the biological parent(s), and give them parental responsibility for the child. A new birth certificate will be issued, in the names of the adoptive parents.
5. Special Considerations for Transgender Parents
Before we conclude, we should point out that particular legal considerations arise for transgender parents.
Since 2004 it has been possible for a person who has transitioned from one gender to another to obtain a Gender Recognition Certificate, meaning that their acquired gender will be legally recognised for all purposes, so that (for example) they can amend their birth certificate.
But that legal recognition has an exception: it does not affect the status of the person as the father or mother of a child. Accordingly, they will remain their child’s legal father if they become legally female, and they will remain their child’s legal mother if they become legally male.
Further to this, anyone giving birth to a child will be recorded as the child’s mother, even if they have a gender recognition certificate confirming they are legally male.
As for transgender men who are the partner of the parent giving birth, their legal position will depend upon the circumstances of the birth, and they may even have no legal connection with the child at all, in which case they may have to obtain legal standing by some other means, such as adoption.
6. Conclusion: Seek Advice!
As we have seen, legal considerations for LGBTQ+ couples and parents may be quite similar to those for heterosexual couples, but when it comes to parenting an entirely different set of considerations may apply.
Either way, it is essential that expert legal advice is sought. Whatever your situation, Walker Family Law’s specialist family lawyers can provide you with the advice that you need. To find out how you can get in touch with us, see this page.
