The route to parenthood looks different for every couple. 

It can come as quite a surprise that just because someone intends to be there at every step of the parental journey, it doesn’t necessarily mean they’ll have legal rights as a parent. 

As we come to the end of LGBTQ+ History Month, we’re exploring how same-sex parents protect their parental rights, roles and responsibilities and ensure that these are recognised and respected in law*. 

*This blog applies to children conceived after 6th April 2009. It is not intended as legal advice and is for information purposes only. If you need any advice regarding this issue, we strongly recommend that you seek legal advice. 

What does it mean to be a ‘legal parent’?

A legal parent is someone who has financial responsibility for a child. They’re classed as their parent for the purposes of British nationality, pension rights, and inheritance. 

The law here in England and Wales states that a child can only have two legal parents.

What about parental responsibility? 

Parental responsibility is a little different to being a legal parent, and there’s no limit to how many people can have it.

Parental responsibility is defined as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”.

Ultimately, it allows you to make decisions regarding your child’s upbringing, such as medical treatment, where they go to school, and what religion they’ll be. 

Legal parents and parental responsibility: does being the biological parent make a difference? 

Well, that all depends on the circumstances. Being a biological parent doesn’t necessarily mean you’ll also be a legal parent – it all depends on how the child is conceived. In turn, being a legal parent doesn’t automatically mean you’ll have parental responsibility. 

Let’s take a look. 

Artificial insemination 

If a child is conceived through artificial insemination at an unlicensed clinic (not licensed by the Human Fertilisation and Embryology Authority (HFEA)) or at home, then the biological father will be a legal parent. However, he’ll need to be named on the child’s birth certificate to have parental responsibility. 

If the birth mother is married or in a civil partnership at the time of conception, then their spouse or partner will be the other legal parent and will also have parental responsibility for the child. 

Sperm donation 

A sperm donor could be the legal father of any child born if they use an unlicensed clinic to donate, but they won’t automatically have parental responsibility.  

Where sperm donations occur at a Human Fertilisation and Embryology Authority (HFEA) licensed clinic, the donor will not be the child’s legal parent or have parental responsibility. In this instance, couples can choose the other legal parent to be named on the paperwork. 

Surrogacy 

In situations involving surrogacy, the person who carries the child and gives birth will be classed as the child’s legal parent and have parental responsibility, regardless of whether they’re the biological parent or have conceived using a donor egg. This also applies to their spouse or civil partner if they have one. 

The intended parents must then apply to the court to obtain parental responsibility and be named as the legal parents. 

Can you change the legal parents of a child? 

Yes, you can, but only through:

  • Adoption. 
  • A surrogacy agreement.
  • A parental order. 

If this is something that you need or intend to do, you must obtain expert legal advice to ensure that your rights as a parent are legally recognised. 

Exercising your rights in law 

If you’re part of a same-sex couple, and both you and your spouse or partner are correctly registered as legal parents with parental responsibility, you should be treated equally under the law. 

Things can get a little trickier if you’re not a legal parent or you don’t have parental responsibility. In that scenario, if you and your spouse or partner separate and you can’t agree on the arrangements for the children, you’ll need to seek the court’s permission to make an application. 

This is just one reason why, if you’re part of a same-sex parenting couple, establishing your place as a parent in the very beginning is a crucial step. 

Becoming parents is one of the most magical times in a couple’s life. As this continues to be a very complex area of law, it’s essential to be clear about the intended legal parents and seek legal advice about your rights. That way, you’ll know and understand the steps you need to take to be your child’s legal parent and ensure that you have parental responsibility.  

Get in touch if you have any questions or need expert legal advice about child arrangements and your parental rights.