Olympic diving champion Tom Daley welcomed his second baby boy in
March 2023, with husband Dustin Lance, via surrogacy. Tom and Dustin are already dads to Robert, who was born via surrogate in 2018. The Olympic gold medalist and his husband have previously spoken out about the difficulties they faced on their journey to fatherhood, with complicated UK surrogacy laws driving them to opt for a surrogate in America.
The number of same-sex couples wanting to start a family is rising: the UK’s Office for National Statistics recorded 212,000 same-sex families in the UK in 2019 – a 40 per cent rise since 2015. Today, there are more options than ever for same-sex couples wanting to start a family but, whether you opt for donor insemination, intrauterine insemination, surrogacy, co-parenting, adoption or fostering, you should be clear who the legal parents of your children are, and who has parental responsibility.
This refers to the rights, duties and responsibilities a parent has for a child. Having parental responsibility does not determine whether a person is a legal parent of.a child.
Mothers automatically have parental responsibility when they give birth, unless this is removed by a Parental Order following surrogacy or adoption.
If same-sex couples have a child where one is the natural parent, then the partner will also have parental responsibility if they were married or in a civil partnership prior to fertility treatment – whether or not they are the biological parent and whether or not the donor is known or anonymous.
If the couple is not married or in a civil partnership, then the person who does not give birth may need to apply to the court as well as having the biological mother’s consent before they can be named on the birth certificate and acquire parental responsibility. This will not apply if the child was conceived in a fertility clinic.
If a male same sex couple who are married or in a civil partnership use surrogacy to conceive a child, they should seek consent from the surrogate before applying for a parental order. When an order is granted, the surrogate will lose their parental responsibility for the child, and both male parents will obtain it instead.
Male same sex couples can also apply to the court for an Adoption Order, which would end the birth parents’ legal connection to the child.
A straight surrogacy arrangement is one in which the surrogate will be the child’s biological parent and use her own eggs together with the sperm of the intended father or a donor.
A gestational surrogacy arrangement is where the intended parents will be the biological parents of their child, or where the child might be conceived with either eggs or sperm from a donor and the surrogate has no biological link to the child. By the very nature of these type of arrangements, conception must happen at a fertility clinic, either in the UK or overseas.
It is important to remember that in both cases the surrogate mother will be the child’s legal parent at birth, and this can only be transferred by parental order or adoption after the baby is born – a process which can take up to 12 months involving one or more court hearings.
At any point up to the issue of a parental order, the surrogate as the legal mother can decide to keep the baby and, in this event, it will be up to a court to decide what is in the child’s best interests.
Remember, commercial surrogacy is illegal in the UK, although living expenses for things like medical treatments and travel costs can be covered.
The law relating to the rights of same-sex couples who want to start a family is complicated and we recommend you seek legal advice as soon as possible if you are considering becoming parents.
Our experts are happy to guide you through the whole process.