What is the Law for Married Lesbians using Sperm Donors?
The law for married lesbians depends on the method of conception. For example if you conceive through a clinic your donor will have no legal parental rights. However if you conceive by home insemination there is a chance your donor will be considered the legal father.
It is widely recognised that lesbian couples are seeking the assistance of fertility treatment, friends or family to enable them to have children. Despite this, the legal requirements of starting your family is at times still complex.
In this section I will review the legal implications of the following:
Donor insemination
Treatment at a licenced clinic
Home insemination
Surrogacy
Domestic surrogacy
International Surrogacy
Take me to:
DONOR INSEMINATION
Licenced Clinic
As the birth mother is carrying the child, she is the legal mother. This is the position whether your own egg has been used or a donor egg.
Providing that you are treated together and you both consent to the treatment then the non-birth mother will be considered the second legal parent. The sperm donor, be it a known donor or unknown, has no legal status in relation to the child. He is not legally or financially responsible for the child.
The birth mother automatically acquires parental responsibility for the child at birth. The non-birth mother acquires parental responsibility for the child by virtue of being in a civil partnership with the birth mother.
Home Insemination
As the birth mother is carrying the child, she is the legal mother of the child.
As you are in a civil partnership then the non-birth mother will automatically be the second legal parent of the child providing the insemination is artificial. The sperm donor will not have any legal rights to the child and he will not be financially responsible for any child conceived.
That said, it is in the nature of home insemination that the sperm donor is known to you. It is therefore important to regulate and agree the role, if any, the donor is to have in the child’s life. It is advisable that you put in place a “Sperm Donor Agreement” or a “Co-Parenting Agreement” (please see below for further information).
Sperm Donor Agreements
When using a known sperm donor it is advisable to draw up a Sperm Donor Agreement between you and the donor outlining how the sperm is to be used and what involvement, if any, you would like the donor to have in the child’s life. A Sperm Donor Agreement is designed to protect you, the donor and the child.
Preparing a Sperm Donor Agreement is useful as it encourages you to consider all the issues that using a known sperm donor can create. It is always advisable to consider all of the issues at the start so that any potential disputes can be avoided.
The following are some of the issues to consider and include in the agreement:
• Who will be named on the birth certificate
• What legal applications will be made after the birth, e.g. adoption orders
• Financial responsibility for the child
• Provision for future donations to provide for future siblings
• Whether the child should have a right to contact the donor
• Whether the donor has the right to contact the child
This list is not exhaustive and you may have other specific things in mind that you want to include in the agreement.
It is important to keep in mind that Sperm Donor Agreements are not legally binding in the UK as any dispute involving a child requires that the court consider the best interests of the child. However, if all parties take independent legal advice before entering into the Sperm Donor Agreement the court will give a great deal of weight to the agreement.
Co-Parenting Agreement
The term “co-parenting” is often used to describe a situation where two or more people, not in a relationship, decide to start a family and raise the child together.
If a co-parenting arrangement is envisaged then a co-parenting agreement should be made.
A co-parenting agreement is an agreement between all of the parents outlining how the child is to be raised. Preparing a co-parenting agreement encourages you to consider all of the issues that a co-parenting arrangement can create. It is always advisable to consider all of the issues at the start so that any potential disputes can be avoided.
The following are some of the issues to consider and include in the agreement:
• Who will be named on the birth certificate
• What legal applications will be made after birth, e.g. parental responsibility, residence orders
• Who the child will live with
• When the child will have contact with the other parent(s)
• Financial responsibility for the child
• Decision making during pregnancy
• Decision making once the child is born
• Provision for future siblings
• What happens if the relationship breaks down
This list is not exhaustive and you may have other specific things in mind that you want to include in the agreement.
Parenting agreements are not legally binding as any dispute involving a child requires that the court consider the best interests of the child. However, if all parties take independent legal advice before entering into the parenting agreement the court will give a great deal of weight to the agreement.
SURROGACY
Surrogacy is when a woman (the surrogate mother) agrees to bear a child for another and surrender the child at birth.
There are two types of surrogacy:
• Partial (also known as traditional or straight surrogacy) – this method uses the egg of the surrogate mother and donor sperm. This can be performed in an IVF clinic or by artificial insemination at home. In this situation the child is biologically connected to the surrogate mother.
• Full (also known as gestational or host surrogacy) – this method uses either the intended mother’s egg or a donor egg combined with donor sperm. In this case an IVF clinic is always required. A child conceived by this method has no biological connection to the surrogate mother.
Surrogacy and the Law in England and Wales
Although surrogacy is legal in England and Wales, it is restricted by various laws. For example, the Surrogacy Arrangements Act 1985 expressly forbids advertising for a surrogate or advertising to be a surrogate. A breach of this Act is a criminal offence punishable by a fine, imprisonment or both. It is also an offence to broker a surrogacy arrangement on a commercial basis.
Surrogacy agreements are unenforceable in the courts in England and Wales, even if a contract has been signed and the expenses of the surrogate have been paid. The family courts have, in practice, proved sympathetic to intended parents applying to enforce a surrogacy arrangement but they have a wide discretion to act in the best interests of the child which means there are no guarantees.
International Surrogacy
It is important to appreciate that international surrogacy can be immensely complex as the law on surrogacy varies between countries.
If a UK couple is considering conceiving with a foreign surrogate, they will need to take care over conflicts of law on parenthood and the rule against paying more than reasonable expenses (which would be considered commercial surrogacy which is illegal). Some countries allow the intended parents to acquire parenthood status automatically, either through a foreign court process (such as a Californian pre-birth order) or simply by allowing them to be named on the birth certificate (as in India). However, if the intended parents are domiciled here, English law will apply to them which means that they may not be regarded as the child’s legal parents (including for the purposes of entry clearance and citizenship, which can prevent them bringing their child home).
If a non-UK couple is considering conceiving with a UK surrogate, they will need to take care over the requirement that at least one of them is domiciled in the UK. If neither intended parent is domiciled in the UK, the court will not have the power to grant a parental order. This means that it will be difficult for them to secure their status as the child’s parents.
Who are the legal parents of a child born through surrogacy?
Under English law, the woman who carries the child is the legal mother. Therefore the legal mother of a child born through surrogacy is always, at birth, the surrogate mother. This means that in surrogacy cases the intended civil partners have no legal recognition parents even if one of the intended mothers has a biological link to the child.
If the surrogate is married or in a civil partnership, her husband/civil partner will be the legal father/second parent of the child unless he/she did not consent to the surrogacy treatment, irrespective of the biological relationships.
The position is different if the surrogate mother is single or widowed at the time she conceives. The surrogate will still be the child’s legal mother but there will be no second parent if donor sperm is used.
If the surrogate is based abroad then her country’s laws will govern who the parents of the child are in that country, e.g. in some states in the US a pre-birth order can be obtained confirming that the intended parents are the legal parents before the child is even born. This does not influence the UK position and so in the UK the surrogate, and her husband/civil partner, will still be considered the legal parents.
Who Goes on the Birth Certificate?
Only the legal parents can be named on the birth certificate where the birth is registered in the UK. The surrogate mother will register the birth and she is recorded as the child’s mother.
If the surrogate is married, her husband is recorded on the birth certificate as the father. If the surrogate mother is in a civil partnership, her same sex partner is recorded as the second parent.
If the surrogate mother is single and donor sperm is used then only the surrogate mother will be on the birth certificate.
How Do the Intended Parents Obtain Legal Rights to the Child?
It is important to take steps after the birth to acquire parental rights and extinguish the legal parenthood of the surrogate, and where appropriate, her husband or civil partner.
The most appropriate way to secure legal rights to the child is with an application for a Parental Order.
Parental Orders
It is important to take steps after the birth to acquire parental rights and extinguish the legal parenthood of the surrogate, and where appropriate, her husband or civil partner.
Providing one of you is the child’s biological mother then you can both apply together to the court for a parental order.
Parental orders extinguish the parental status of the surrogate and, where appropriate, her husband or civil partner, and confer full parental status and parental responsibility on both of you as the intended parents.
Once a parental order is made, a new birth certificate is issued naming the intended parents which replaces the child’s original birth certificate and secures the position of both of you.
To apply for a parental order, you must show the following:
o You are both over the age of 18 and one or both of you are domiciled in the UK;
o That one of you is a biological parent of the child;
o That you are married, in a civil partnership or are two people living together as partners in an enduring relationship;
o That the child’s home is with you;
o That conception took place artificially (which can include home insemination);
o That the surrogate mother (and her husband or civil partner where appropriate) has fully and freely given her consent to the making of the order;
o That no more than reasonable expenses have been paid. What constitutes reasonable expenses depends on the facts of each particular case and legal advice should be sought for clarification.
The timetable for making the application is strict. You must apply to the court within six months of the child’s birth and you must allow the surrogate mother at least six weeks to reflect on her decision before she can give effective consent to your application.
Local Authority Involvement
In addition your Local Authority should be advised, in writing, of the surrogacy arrangement three months prior to making your application for a parental order. Your Local Authority will need to become involved in order to set up a “private fostering arrangement” in relation to the child until such time that you have secured the relevant court orders that you need. It is usual to seek a residence order at the first court hearing in order to acquire parental responsibility for the child. There would then be no further need for the “private fostering arrangement” and the Local Authority’s involvement would cease.
At this time, a court social worker, known as a Parental Order Reporter, would be appointed to become involved in your case. Your Parental Order Reporter would visit you at home with your child and prepare an assessment for use by the Judge at the final hearing.
Why Should We Apply for a Parental Order?
As neither of you will automatically be a legal parent it is very important that legal recognition of your status is obtained. Otherwise, neither of you will have any legal authority to care for the child or to make decisions about the child’s welfare. This can cause many difficulties (for example, cannot consent to immunisations and medical treatment), particularly where it is not practical to secure the surrogate’s involvement in day-to-day decisions. You could also be committing a criminal offence in caring for the child if they do not involve Social Services to oversee the situation.
Although the problems associated with taking no action may not cause problems immediately, in the long term, there are many possible opportunities for the underlying legal issues to arise.
Recommended Steps During Pregnancy
It is important to understand the legal position and prepare for the legal process. As well as this, it is essential for all those involved in a surrogacy arrangement to make or update their Wills and take out appropriate life insurance. Taking these steps should ensure that the surrogate and her family are protected and that you achieve some recognition as parents if the surrogate dies.
What if a Parental Order is not Available?
If any of the conditions listed above cannot be satisfied then it will not be possible to obtain a parental order. There are alternative court orders that can be obtained and specialist legal advice should be sought. The most commonly sought orders are as follows:
1. Adoption
An adoption order terminates the parental status of the surrogate, and if relevant her husband or civil partner, and gives permanent legal parental status to the intended parents. This is therefore the closest alternative to a parental order.
If you used a domestic surrogate (i.e. based in the UK) then you can apply to the court for an adoption order once you have lived with the child for six months. Three months notice must be given to your Local Authority before the court application can be made. In practice therefore you must wait until the child is three months old before beginning the adoption process. Once notice has been given to your Local Authority, social services will assign a social worker to visit you at your home and prepare a detailed report for the court. This process is relatively simple although if there is a legal father, he too will need to be involved in the process as he must consent to the adoption order being made. Once the report has been completed you will need to attend a court hearing where a judge can make the adoption order.
If your surrogacy took place internationally then whether the adoption route is available to you will depend on the laws of the country where the surrogacy took place, e.g. if the surrogate is in California then State Law says that the intended parents are the parents of the child. Therefore California will not co-operate with the UK to adopt a child that California holds as already being the child of the intended parents.
It is crucially important that you take specialist legal advice before commencing an international surrogacy arrangement and the adoption process as some parts of the process have to be carried out prior to the child being born. Failure to do so may unknowingly constitute a criminal offence.
2. Residence Orders
A residence order is a court order which primarily states who the child should live with. If you are granted a residence order then you will also acquire parental responsibility automatically. However, parental responsibility does not make you the legal parents of the child. In addition, a residence order does not extinguish the legal status of the surrogate mother (or her husband/civil partner if applicable). In effect, parental responsibility gives you equal parental status to that of the surrogate when it comes to making important decisions about the child’s life and welfare, such as where they should go to school, medical treatment etc. You are unable to use your parental responsibility to the exclusion of the surrogate mother (and her husband/civil partner is applicable) and all important decisions relating to your child should be made in consultation with your surrogate. This is something to keep in mind if you have a difficult relationship with your surrogate.
3. Special Guardianship Orders
A special guardianship order is the middle ground between an adoption order and a residence order. Whilst a special guardianship order does not give you full legal parental status and does not extinguish the parental status of your surrogate (and her husband/civil partner if applicable), it does give you the power to exercise your parental responsibility to the exclusion of the surrogate mother and her husband/civil partner.
For tailored fertility law advice on your personal circumstances please contact Kimberley Davies at Lester Aldridge Law and say you are a member of Co-ParentMatch.com ([email protected])