Starting a family if you are LGBTQ+: what are the legal considerations?

Surrogacy is a legal option for LGBTQ+ individuals and couples however, there are lots of rules and restrictions relating to its operation for example, you cannot advertise that you are looking for a surrogate, enter into a legally binding surrogacy contract or pay a surrogate anything other than reasonable expenses. In reality this means that finding a surrogate in the UK can often be a challenge unless you have a friend or family member willing to help or, you work with a surrogacy agency (the main three agencies in the UK being Surrogacy UK, Brilliant Beginnings and My Surrogacy Journey) to help find a match. 

Under UK law it is the surrogate, as the person who gives birth, who is treated as the legal mother. If she is married or in a civil partnership her partner will automatically be the legal father/second legal parent. This is the fixed legal position upon birth and applies irrespective of biology and what everyone intends. If the surrogate is single, the biological father will automatically be the legal father unless, conception takes place at a registered UK fertility clinic and parenthood nomination forms are signed in advance nominating the non-biological father or intended mother as the second legal parent. Once the child is born, the initial birth certificate will reflect the initial legal parenthood position meaning at least one person, in the event of a couple, will not be listed on the child’s birth certificate and for individuals, a surrogate will be on the birth certificate. 

The UK legal solution to transfer legal parenthood following surrogacy is the parental order, a post birth order made by the family court some months following the birth. Once made, this order fully and permanently extinguishes the surrogate’s legal status (and if relevant, the legal status of her partners) and parenthood is then transferred to the intended parent/s. Throughout the court process the intended parent/s will need to demonstrate how they meet a number of legal criteria and the court will need to be satisfied that the surrogate consents fully, freely and unconditionally to the making of the order.  

Surrogacy overseas is also an option for LGBTQ+ individuals or couples, the most established and LGBTQ+ friendly destination being the USA where intended parents enter into legally enforceable surrogacy contracts following a match via a surrogacy agency. Intended parents then follow either a pre or post birth court process meaning that once the child is born, they are eligible to be listed on the child’s US birth certificate. These factors make the US a desirable country compared to the UK given the woolly legal position and often undesirable timescales to be matched with a surrogate. 

When crossing borders for surrogacy, it is important that specialist legal advices is sought both in both countries as well as immigration advice to ensure that there is a safe and well-planned route home.

Following an international surrogacy arrangement, intended parents will still need to apply to the UK court for a parental order. This is because there is no international law on surrogacy meaning the international surrogate will be treated as the legal mother and we do not recognise the international position and what the birth certificate says. As above, the intended parents make the application following the birth and will need to provide evidence of the surrogate’s consent to the making of the order.  

Since 2005, same-sex and LGBTQ+ individuals have had the legal right to adopt in the UK meaning LGBTQ+ applicants cannot be rejected solely based on their sexuality or gender.

Practically, adoption in the UK typically involves an assessment by either a local authority or private adoption agency who carry out background checks, home visits, references and interviews on the applicants. The purpose of the assessment is to see whether the applicant/s are suitable to care for a child, including those with possible additional needs because of trauma during their early years. There are various groups that offer support and advice to the  community for LGBTQ+ adoptive parents such as, New Family Social - Home and CORAM IAC. Once the assessment is complete, a report is reviewed by an adoption panel who then decide whether to approve the applicant/s as adopters. There is then a period of waiting until a suitable child and adopter match.

Legally, once an adoption order has been made by the family court, legal parenthood is transferred from the child’s birth parents to the LGBTQ+ adoptive parent/s and a new adoption certificate is released confirming this legal position. It is intended to be a permanent solution and requires the birth parents’ involvement and where relevant, consent unless the court have dispensed with this requirement. 

International adoption for LGBTQ+ individuals or couples requires careful planning and there are several factors to take into account including, the laws of the country in which the child lives and the UK regulations regarding intercountry adoption and immigration.

The key challenge for LGBTQ+ couples and individuals are that adoption laws in the child’s home country might not be as inclusive as the UK. Some countries do not recognise the legal rights of LGBTQ+ individuals or same-sex couples, and may have explicit restrictions against LGBTQ+ adoption, particularly those with a more conservative culture or religious views. It is for that reason it is essential for LGBTQ+ individuals or couples to carefully research and take advice and guidance from professionals with expertise and experience in international adoption law before progressing any plans.

Depending on the country involved and the processes followed, a UK order may be required following an overseas adoption and you can read more about this here.

Donor and co-parenting arrangements are popular parenting choices for LGBTQ+ individuals and couples. This is because relationships between the adults are often well established and there is an option, where agreed, for the child to have a relationship with their donor.

In any known donation or co-parenting arrangement, it is advisable to enter into a bespoke pre-conception agreement that records what has been agreed between the adults. Whilst this will not be legally binding, an agreement will be a helpful exercise to force discussions and ensure that everyone involved is clear about post birth arrangements and what everyone’s role will be. In our experience successful known donor and co-parenting arrangements are those that are well planned in advance and with tricky conversations being managed upfront.

The legal parenthood position should also be a key consideration in any donor or co-parenting arrangement. This is because under UK law a child can only have two legal parents and the parent who gives birth will always be the legal mother. Who is the child’s other legal parent is more complex and will vary depending on the status of everyone involved and how and where conception takes place.

In some donor and co-parenting arrangements, family court orders are needed following a child’s birth to confirm arrangements or a person’s legal status. This can sometimes be the case even if there is no dispute - for example an unmarried non-birth lesbian mother may need to apply for an adoption order post birth to secure her status as a second legal parent. In some situations, declarations of parentage and declarations of non-parentage are also required to ensure that a child’s birth certificate, following donor and co-parenting arrangements are accurate.