Family Options – Legal Implications For Same-Sex Families

The options available for building families can be overwhelming.

Louisa Ghevaert, a leading UK surrogacy, fertility and parenting law expert, explores the legal implications for same sex families achieved through fostering, adoption and surrogacy.

Same sex couples can achieve parenthood in a variety of ways – as a foster parent; an adoptive parent; through former heterosexual relationships, as a step parent – and for female same-sex couples via a sperm donor (a male friend) or an anonymous sperm donor. Conception can take place at home or at a UK fertility clinic licensed by the Human Fertilisation and Embryology Authority (HFEA). For male couples, egg donation and surrogacy is becoming an increasing popular route to parenthood.

Fostering

Fostering offers a temporary home to children who may need a break from or have been neglected or suffered harm in the care of their birth family. The expectation is that these children will either return to their birth families (if this is feasible) or a long term placement will be identified. Foster parents do not acquire any legal rights and responsibilities (known as parental responsibility) towards the children that they foster.

Fostering can take many guises including;

  • respite (for example, one weekend a month);
  • full time foster carers offering either short term care (less than a year) or long term care (older child until they achieve independence);
  • mainstream foster carers and
  • specialist cares for challenging children with additional needs.

 

If you are interested in fostering, the first step is to contact your Local Authority, who welcome applications to foster from same-sex couples. Anyone who is aged 18 years and over can foster: there is no upper age limit.

Applicants will be comprehensively screened and interviewed by a social worker to confirm they are a safe person to care for children and that you can cope with the challenges and rewards of fostering. In addition, an independent Fostering Panel will make a recommendation about suitability to foster. Approved foster carers are eligible to receive a fostering allowance from the Local Authority fostering team of £123 per week minimum.

michel

Adoption

The law has permitted same-sex couples to adopt for nearly 10 years — since 1 December 2005.

Unlike fostering, an Adoption Order terminates the legal rights and responsibilities (parental responsibility) and legal parenthood of the child’s birth parents and permanently transfers parental responsibility and legal parenthood to the adopters. An adopted child is treated in law as if he or she has been born to their adoptive parents.
If you are considering adoption, First4Adoption (/www.first4adoption.org.uk) offers an online information service, guiding you through the process. Like fostering, adoption requires comprehensive screening, interviews with a Social Worker and a recommendation from an independent Adoption Panel.

Surrogacy

For male same-sex couples, surrogacy is increasingly becoming a family building option of choice. Using your sperm and a donated egg, a surrogate mother can carry your baby for you as intended parents. However as the law around surrogacy is complicated and ever-changing, there are some key considerations to acquiring legal parenthood and parental responsibility — and expert legal advice is strongly recommended.

lOUISA-gHEVAERT-optimized

Surrogacy in the UK is legally restricted. English law treats a surrogate mother (and her spouse) as the surrogate-born child’s legal parents at birth. Commercial surrogacy (where the surrogate is paid a commercial sum and enters into a legally binding contract) is illegal in the UK but is permissible elsewhere in the world.

In the UK a Parental Order is the legal solution for surrogacy, which reassigns legal parenthood and parental responsiblity to the intended parents and permanently extinguishes the legal parenthood and parental responsibility of the surrogate (and that of her spouse). If the surrogate is not married, then the intended father will usually become the legal father at birth, provided that he is the biological father. However if treatment takes place in a licensed fertility clinic in the UK, there is a choice as to who is the named second legal parent. For same-sex couples, the non-biological parent could be named as the other legal parent.

 

International surrogacy is complex with no international harmonisation of surrogacy law which can result in overseas surrogate born children being left ‘stateless and parentless’.

Summary

  • Fostering – temporary situation. You do not acquire any legal responsibilities or rights in relation to the child you are caring for. You are acting on behalf of the fostering team.
  • Adoption — toddler/preschool child from the care system. Permanent forever family achieved via an Adoption Order.
  • Surrogacy — creation of a baby with a biological connection to you. Need to apply for a Parental Order in the UK
  • Sperm and egg donation also raise numerous complex legal issues, particularly in a known is used and/or insemination takes place away from a licensed fertility clinic. Expert legal advice is strongly recommended.

Louisa Ghevaert is a leading expert in UK surrogacy, fertility, parenting and family law. Louisa has successfully handled numerous landmark UK fertility law cases. She heads up the Fertility and Parenting law team at Michelmores LLP, michelmores.com. She can be contacted by email louisa.ghevaert@michelmores.com or by telephone at +44 (0)207 7886382.