Parenthood for same sex couples
From 6 April 2009 the Human Fertilisation and Embryology Act 2008 changed the law with reference to determining parentage.
The changes in law now enable a person, who is not necessarily the biological parent of a child to be named as a parent on the child's birth certificate and, consequently, afford them parental responsibility.
A mother will always be the woman who has carried the child through pregnancy and will only cease to be the mother if the child is subsequently adopted or a parental order is made.
Who is the other parent?
Having established the identity of the mother, it is then necessary to determine the "other parent". The "other parent" may also be a woman.
The provisions in determining the "other parent" are somewhat complicated. We have tried to summarise the key provisions below but for detailed advice on this matter please get in touch.
IVF Treatment
If a married woman becomes pregnant through IVF treatment using her husband's sperm, then the husband is to be treated as the father. The only exception to this rule is if the husband did not consent to the treatment.
If an unmarried woman becomes pregnant through IVF treatment and enters into an agreement with a man who consents to being treated as the father of the child, then he will be treated as the father.
Same Sex Couples
If at the time the woman became pregnant she was in a civil partnership, providing the civil partner did not object to the woman becoming pregnant, she is to be treated as the other parent.
If however, the woman was not in a civil partnership, but is in a relationship, the partner can only be treated as the other parent if she satisfies certain conditions.
Providing these conditions are met and the other parent is named on the birth certificate, then she shares parental responsibility with the mother.
If the other parent is not named on the birth certificate and does not therefore share parental responsibility with the mother, it is possible for the other parent to obtain parental responsibility either through agreement with the mother or having obtained an Order of the Court.
Surrogacy
New provisions for a parental order following surrogacy arrangements will come into effect in April 2010. These provisions will enable civil partners of both genders and some couples who are not married or not in a civil partnership to apply for an Order providing for a child to be treated in law as their child.
Summary
The law remains that a child may only have two parents. Where a child has a mother and a female other parent, no man may be treated as the child's father and the child is therefore legally fatherless.
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