Pride in the paths to parenthood

In honour of Pride Month, we are discussing (and celebrating) the diverse paths to parenthood within the LGBTQ+ community. For couples or individuals looking to start a family, there are a number of options available, each with important factors and implications to consider. This short blog touches on some of those considerations.
 

Family formation
 

Donor conception

Many LGBTQ+ individuals and couples undertake intrauterine insemination (IUI) or In-Vitro Fertilisation (IVF) processes in order to have their children.

The legal implications surrounding the method of conception (and marital status of the couple) are vital to understand. For example, the legal mother will always be the person who carries and gives birth to the child. Therefore within a same-sex female couple, if one donates the egg but the other carries the baby, the carrier will be the legal parent and the egg donor may not be if conception does not take place in a UK licensed clinic.

Surrogacy

Surrogacy is a process whereby someone carries a child on behalf of a couple or individual and is a regular option considered by same-sex male couples. When a baby is born to a surrogate, she will always be the legal mother under English law and, if she is married or in a civil partnership, her partner will be the child’s legal parents. An application for a parental order is therefore required in this country to transfer legal parentage to the intended parents and to give them parental responsibility for their child.

As there is a shortage of surrogates in the UK and surrogacy contracts are not enforceable here, many intended parents enter into surrogacy arrangements overseas and so consideration also needs to be given to the child’s nationality and the travel documentation available to enable them to travel home.

In an international surrogacy arrangement, where an intended parent is British, it is important to understand if a child will be British at birth and if not, if and when they can become British. Even where British citizenship is available at birth, a passport application is likely to be more complex in these circumstances. Discussing these matters early on allows for planning to be done and it may be that a pragmatic option is available to ensure a child can be brought home as early as possible.

Where there is no British intended parent, it is really important to understand if and when a child will be able to obtain a travel document from either their country of birth or in line with the nationality of one or both intended parents. The UK immigration rules do not have special provisions for surrogacy arrangements so early consideration needs to be given as to what options may be available for a child to come to the UK in these circumstances.

Adoption

By adopting a child, a couple or individual becomes their legal parent in place of the child’s biological parents. Like surrogacy, the adoption process is governed by a strict set of rules, including a rigorous application and approval system. Adoption is often a first choice for members of the LGBTQ+ community as an opportunity to welcome a child into their life who cannot for a variety of reasons be raised by its biological parent(s).

There may be other circumstances in which adoption could provide the necessary legal recognition for how members of a family already view themselves, and it can be an option where one parent does not have a biological connection to a child or is a step-parent.

Co-parenting arrangements

The definition of family has changed significantly in recent decades and there can never be a ‘one size fits all’ approach when it comes to family arrangements. This is particularly true in LGBTQ+ families, platonic co-parenting arrangements or in relationships of Ethical Non-Monogamy (ENM). Sometimes the arrangements, intentions or expectations of those parenting a child may need to be discussed and formalised in co-parenting or donor conception agreements.

Legal Guardianship
 

Children add another unique and often complex dimension to estate planning for LGBTQ+ families, for example where the child was born via surrogacy, is adopted, or only one partner is the biological parent of that child. Guardians (individual(s) appointed under a Will to act as a minor child’s guardian in the event that their parent(s) die before they reach the age of 18) can only be appointed by someone with parental responsibility.

The guardian of a minor child (a person under the age of 18) has an important and responsible role.  A guardian steps into the shoes of the parent and obtains parental responsibility as far as the major decisions about the child are concerned.  A guardian will for example be in control of such matters as where the child is to live (which does not need to be with the guardian) and how the child is to be educated.  The selection of a guardian or guardians should therefore be considered carefully.

Same-sex partners will both have parental responsibility if they were civil partners at the time of the treatment (for example donor insemination or fertility treatment); and for same-sex partners who are not civil partners, the second parent can obtain parental responsibility by either applying for parental responsibility if a parental agreement was made or by becoming a civil partner of the other parent and making a parental responsibility agreement or jointly registering the birth.

It is therefore important, in situations where only one parent is the biological parent and they are not married/in a civil partnership, that the biological parent appoints the other parent as the guardian for the child under their Will, otherwise no legal guardianship is established. If this is not done, a guardian would need to be appointed by the Court and as there is no guarantee that the non-biological parent will be appointed, it is best to cover this off very clearly in the Will.

Core employment rights in the workplace when starting a family via surrogacy or adoption
 

Surrogacy

Currently, “intended/commissioning mothers” are not entitled to protection against pregnancy and maternity discrimination or maternity leave or pay after the birth of their child (through a surrogate), even though they may be breastfeeding and/or caring for the child. 

One (not both) of the intended parents who is eligible and intending to apply for a parental order is entitled to unpaid time off to accompany the surrogate mother to up to two antenatal appointments.

One of the intended parents will be able to benefit from statutory adoption leave and pay for a child born through a surrogate, so long as at least one of the parental order parents has supplied the genetic material (sperm or egg) for the child. The other intended parent may be able to take statutory paternity leave or shared parental leave and pay if they meet the relevant eligibility criteria.  

If the unthinkable happens and the child is stillborn or dies, even before the intended parents take over responsibility for the child's care, they can still qualify for parental bereavement leave.

Adoption

Employees have certain rights to adoption leave and pay, and if the eligibility criteria are met they can take up to 52 weeks’ statutory adoption leave in respect of a child under 18. During the period of adoption leave, employment rights (e.g. right to pay, holidays and returning to work) will be protected.

Those who take adoption leave, whether through adopting or surrogacy arrangements, are afforded protection from detriment or dismissal relating to adoption leave.

Parental leave

In addition to adoption, maternity, paternity and shared parental leave, employees/parents with at least a year’s service are also entitled to (unpaid) parental leave.  This entitles employees to take up to 18 weeks’ unpaid leave (per parent, per child) up to the child’s 18th birthday.  This is subject to a restriction of taking up to four weeks’ leave in one year and giving the employer at least 21 days’ notice.

If you are considering having children or have already started one of the processes outlined above and require further information or advice from our team of specialist LGBTQ+ family lawyers, please contact a member of our team, email us or call us on +44 (0)20 7814 1200. Alternatively you can submit a brief online enquiry here.

About the authors

Connie Atkinson is a Partner in the family team and has experience of dealing with all aspects of private family work relating to both finances and children.

Kirsty Churm is a Legal Director in the Employment Department. She advises both employers and senior employees on all aspects of employment law and employee relations issues, including contentious and non-contentious matters.

Katie Newbury is a Partner in the immigration team and has over 10 years' experience across a wide spectrum of UK immigration matters, with particular expertise in applications made under Tier 1 of the Points Based System and complex personal immigration matters.

Liam Hurren is an associate in the Family and Divorce team, and advises on all aspects of family law including divorce and separation, financial settlements, arrangements for children, and nuptial agreements.

Luck Bluck is an associate in Kingsley Napley's private client team, where she acts for families and high net worth individuals in relation to various matters including the preparation of Wills and Lasting Powers of Attorney, lifetime succession and estate planning, the administration of estates and issues relating to capacity.