Scullion News & Resources
In Scotland, members of the LGBTQ+ community can now start families of their own due to advances in reproductive medicine.
This article will explore the most popular pathways to parenthood for LGBTQ+ couples and individuals and assess whether those who undergo fertility treatment in the hope of having a child can formalise and protect their relationship to the child in law or whether structural barriers remain.
At its simplest, a parent is someone who is responsible for the care and upbringing of a child. This usually, but does not always, coincide with who the legal parent of a child is.
The question of “who is a legal parent?” is important for two reasons. Firstly, a legal parent has rights and responsibilities for their child. This means that they have the right to have the child live with them or else spend time with them. In addition, they are entitled to make decisions about the child’s care and upbringing. For example, deciding where the child should live, deciding what school the child should attend and deciding what medical treatment the child should receive to name a few examples. Secondly, a legal parent has financial responsibility for their child.
In cases involving heterosexual couples who have been able to conceive naturally, the process of identifying the legal parents is straightforward. However, for LGBTQ+ couples or individuals who have accessed fertility treatment to start a family, the process of identifying the legal parents can be complex.
Establishing who is the Legal Parent is a task that is perhaps best left to family law practitioners. They can assess the circumstances surrounding a child’s birth, review the terms of the legislation and subsequently determine who the legal parents are. In addition, they can advise LGBTQ+ couples or individuals whether steps require to be taken to transfer legal parenthood to formalise their relationship to the child.
Surrogacy is a popular choice for those in the LGBTQ+ community. It is an arrangement whereby a woman carries and gives birth to a child for another couple or individual to raise as their own. In Scotland, surrogacy is legal provided that it is carried out on an altruistic basis. However, commercial surrogacy is prohibited.
The legal mother of a child who is born via surrogacy is the surrogate. The relevant law is contained within s.33(1) of the Human Fertilisation and Embryology Act 2008. This holds true irrespective of whether the surrogate’s eggs were used to conceive the child.
If she is married or in a civil partnership with a man, then he is presumed to be the legal father of the child in terms of s.35(1) of the Human Fertilisation and Embryology Act 2008 unless it can be shown that he did not consent to treatment.
It is possible for legal parenthood to be transferred to an LGBTQ+ couple or individual by way of a parental order granted by a Court. However, certain eligibility criteria must be met before a parental order can be granted. As follows:-
The surrogate is always recognised as the legal mother of the child in the period following the birth. This means that the child is legally tied to the surrogate and not the intended parents who wish to raise them. Unfortunately, the intended parents cannot make important decisions about the child’s care and upbringing during the limbo period prior to a parental order being granted.
While surrogacy contracts can be helpful in setting out the parameters of what has been agreed between the surrogate and the intended parents, they are not legally enforceable. This means that the surrogate could change her mind and refuse to hand over the child. If that happens, then the intended parents will require to raise Court proceedings.
The Sheriff who is tasked with making a decision about the child will do so based upon the welfare of the child rather than simply following what has been encapsulated in a surrogacy contract.
The NHS does not fund surrogacy-related costs. This means that LGBTQ+ couples and individuals have to fund their surrogacy journey privately. This could disproportionately impact low-income LGBTQ+ couples and individuals. They might lose out on the chance to start a family because the cost of private treatment is so high.
Artificial insemination and in vitro fertilisation (“IVF”) are popular choices for those in female same-sex relationships.
Artificial insemination involves placing sperm directly inside a woman’s uterus to encourage fertilisation. If treatment is successful then the woman will fall pregnant and carry a baby to term in the normal way.
Meanwhile, IVF involves removing eggs from a woman’s ovaries and then fertilising those eggs in a laboratory with a sperm sample. Once the eggs have been successfully fertilised, they are then re-implanted into the woman’s uterus. As above, if treatment is successful then the woman will fall pregnant and carry a baby to term in the normal way.
The legal mother of a child born via artificial insemination or IVF is the woman who underwent treatment, fell pregnant and gave birth. The law that applies is contained within s.33(1) of the Human Fertilisation and Embryology Act 2008. This remains the position even if donor eggs were used to conceive the child.
If the legal mother is married or in a civil partnership with a woman, then her spouse or civil partner is deemed to be the other legal parent in terms of s.42(1) of the Human Fertilisation and Embryology Act 2008. This is provided the spouse or civil partner consented to the fertility treatment.
If the legal mother is in a committed relationship with a woman, then she will be deemed to be the other legal parent in terms of s.43 of the Human Fertilisation and Embryology Act 2008 subject, firstly, to the treatment being carried out in a licensed clinic and secondly, to the satisfaction of the “agreed female parenthood” conditions.
If the relationship status of the legal mother is unclear, then this may raise questions as to who the other legal parent is. It is not uncommon for people to be married but separated and in a relationship with someone new. As such, it may be necessary to chart the timeline of the legal mother’s relationship history to identify if there is another legal parent.
If artificial insemination is carried out on a DIY basis rather than in a licensed clinic setting, then the man who provided the sperm sample could be deemed to be the legal father of the child with all of the attendant rights and responsibilities.
The NHS does fund artificial insemination and IVF but only if certain eligibility criteria are met. LGBTQ+ couples and individuals who do not meet the requirements will have to fund their treatment privately. This could disproportionately impact low-income LGBTQ+ couples and individuals who could lose out on the chance to start a family as the cost of private treatment is prohibitive.
We encourage members of the LGBTQ+ community who seek to become parents with the help of reproductive technology to exercise caution and consult with an experienced family law solicitor before proceeding as it is not always straightforward to formalise the parent-child relationship in law.
Please contact us if you are affected by any of these issues. Our Family Law Team is here to help. This article was prepared by Laura Cousins, Solicitor.
The content of this article is for information only, is not intended to be construed as legal advice, and should not be treated as a substitute for specific advice. Scullion LAW accepts no responsibility for the content of any third-party website to which this article refers.
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