The fertility gap – Considerations and challenges for LGBTQ+ couples or individuals when having children

For couples or individuals in the LGBTQ+ community, there are a number of options for starting a family including: donor conception; co-parenting arrangements; solo parenting; surrogacy and adoption. The laws governing the various routes can be complex and knowing where to start can often be the first big challenge.

A summary of some of the routes to parenthood are below:

Donor conception

Many LGBTQ+ individuals and couples undertake Intrauterine insemination (IUI) or In-Vitro Fertilisation (IVF) processes in order to have their children. Both processes can be difficult and can take their toll physically and emotionally.

The legal implications surrounding the method of conception (and marital status of the couple) are vital to understand. For example, if within a same-sex female couple, 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. We regularly advise clients on the implications of their planned arrangements and help them to put in place the necessary protections.

It is essential to understand the fertility processes available and what planning is required, particularly for trans, intersex and non-binary people (either with testes or ovaries) who intend to have biological children.

Surrogacy

Surrogacy is a process whereby someone carries a child on behalf of a couple or individual. Gestational surrogacy in particular is a common option for same-sex male couples but we see many clients from within the LGBTQ+ community who need advice to ensure that the legal parents of the child are those who the couple intended them to be.

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. We have a wealth of experience in advising clients (together with our Immigration team) on how to ensure their surrogacy journey and the return to the UK with their newborn is as smooth as possible.

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 now 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, and we often assist clients who are seeking to do that.

The fertility gap

Unfortunately, we have experienced the ways in which LGBTQ+ people face barriers in their routes to parenthood, particularly with regards to access to fertility treatment. It is therefore crucial to understand as much as possible about the processes which may be available to you as early as possible.

While there are now more options that ever before for LGBTQ+ couples and individuals to have children, there continues to be additional barriers which are not experienced by their straight cis counterparts. A survey of LGBTQ+ women and non-binary people conducted by Stonewall and DIVA magazine last year found that 36% of respondents who had children had experienced barriers or challenges when starting their family. Some of the key issues are explored below but these can vary depending on location and individual circumstances.

• Location, funding and eligibility for IVF
  In 2022, the UK government’s Women’s Health Strategy pledged to remove additional financial barriers to IVF for same sex female couples in England. This included the requirement to pay for artificial insemination to prove fertility status before accessing IVF services. In the following year, Megan and Whitney Bacon-Evans withdrew their judicial review challenge against NHS Frimley’s Integrated Care Board (ICB) which had announced its commitment to address the inequality.
  
  However, many regional ICBs still require same sex female couples to self-fund at least six cycles of IUI before they are eligible for IVF treatment on the NHS. Others even require up to 12 cycles, far beyond what is recommended in guidelines provided by the National Institute for Health and Care Excellence, and showing the situation to be somewhat of a postcode lottery. This is in comparison to most straight cis couples being able to qualify for IVF if they have not become pregnant after two years of unprotected sex.
  
  With IUI costing between £350-£1,600 per cycle at a private clinic, a couple who needed to fund twelve IUI cycles and associated medical fees could be required to spend up to £25,000 before being eligible for NHS treatment. Therefore, for many this cost is impossible to afford and depending on where you live, IVF may be completely out of reach. IVF equality is one of Stonewall’s current major campaigns and further information can be found here.
   
• The legal position
  LGBTQ+ couples and individuals must address a number of additional legal hurdles on their journey to parenthood which their straight cis counterparts simply do not. For example, if a same sex male couple have a child via surrogacy, under the law in the UK currently their surrogate and her spouse will be considered the child’s legal parents on birth and they are required to apply to the court for a parental order in order to change this.
  
  The law is complex, outdated and often considered to be impenetrable to a lay person, which often means a couple or individual will need detailed and bespoke legal advice. Where this is not available (for financial or other reasons), people may attempt arrangements on a DIY basis and this can often lead to unforeseen issues and a lengthy court process.
   
• Societal attitudes
  Stigma and discrimination can also play a role. Members of the LGBTQ+ community may experience biases or lack of understanding from some healthcare providers or institutions, which can create additional obstacles. According to Stonewall’s LGBTQ+ in Britain Health Report, almost 1 in 4 LGBTQ+ people (23%) have witnessed discriminatory or negative remarks against LGBTQ+ people by healthcare staff. This culture can create a sense of fear and anxiety about seeking information or treatment, or hiding or masking the individual’s true identity, sexuality or gender.
   
• Information and support
  There may be a lack of clear information and support tailored to the needs of LGBTQ+ couples and individuals who are seeking to have children, particularly when it comes to donor conception arrangements and surrogacy. Access to specialised advice and guidance can be crucial in navigating the complexities of fertility treatments and legal issues.
  
  Advocacy and support organisations, such as Stonewall and the Human Fertilisation and Embryology Authority (HFEA), work to address these disparities and improve access for LGBTQ+ people. However, the extent to which these issues are addressed can still vary, and ongoing efforts are needed to ensure equitable access to the relevant services for all individuals.

further information

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 author

Liam 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. He is Co-Chair of Kingsley Napley’s LGBTQ+ & Allies Network.