The legal status of female same-sex couples using donor conception 

by Shoosmiths LLP

Published: January, 2022

A question that is often asked about the parental status of female same-sex parents is: do they both have the same legal rights in relation to their child?


The law changed on 6 April 2009 by virtue of sections 42 and 43 of the Human Fertilisation and Embryology Act 2008, so that both the birth mother and her partner (referred to here for ease as the ‘non-birth mother’) can be recognised as legal parents for conceptions that took place after that date.


If a birth mother is married or in a civil partnership at the time the child was conceived, provided it was after 6 April 2009, both the birth and non-birth mother are automatically the legal parents. The conception can take place using IVF or artificial insemination at home or in a fertility clinic in the UK or abroad. The non-birth mother’s name will be registered on the birth certificate and they will automatically acquire parental responsibility, as will the birth mother. Parental responsibility encompasses all the rights, duties, powers, responsibilities and authority, which by law a parent of a child has in relation to the child and their property.


The exception to the automatic conveying of parental status onto the non-birth mother is that if it can be shown that they did not consent.


For those female same-sex couples who are not married or in a civil partnership, they can still ensure that the non-birth mother obtains parental status, but the conception does have to be at a licenced clinic in the UK and the non-birth mother “remained alive at that time”. They both need to complete and sign the relevant Human Fertilisation and Embryology Authority (HFEA) forms giving their consent to nominate the non-birth mother as the other parent before conception. The HFEA is the UK fertility regulator and when receiving fertility treatment at a licenced clinic, there are forms that need completing depending on the circumstances of those receiving the treatment and what they hope to achieve.


The non-birth mother will need to be registered on the child’s birth certificate to obtain parental responsibility. If they are not, parental responsibility can be obtained later by entering into a parental responsibility agreement or by court order.


Both parents will need to have undergone counselling when conceiving at a licenced clinic outside of marriage or civil partnership, while also provided with the full and proper information about the HFEA forms. It is extremely important that the correct process is followed to ensure that there are not any issues later.


The biological father of a donor conceived child has no status in law as a parent, if a child conceived using his sperm has two female parents. The non-birth mother will gain all the same responsibilities as a legal father would, including being financially responsible for the child.


This can be a complex area of law and it is really important that advice is sought by any potential parents, particularly those not married or in a civil partnership who are going through the process of trying to conceive a child, to ensure that their wishes are fulfilled.


For further information on donor conception or fertility law, please get in touch with the Shoosmiths’ family team.


 



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