Same-Sex Parents And Parental Responsibility - Getting Advice Early

• Published date: 16 March 2021
• Subject Matter: Litigation, Mediation & Arbitration, Family and Matrimonial, Family Law, Trials & Appeals & Compensation
• Law Firm: Burgess Mee
• Author: Polly Faithfull

When same-sex couples become parents, they are faced with a number of important issues which makes taking proper legal advice essential to avoid issues arising in the event that they unfortunately separate. This was highlighted in the recent judgment of FC v MC and DC (A Minor) [2021] EWHC 154 (Fam).

The parties were in a female same-sex relationship from 2010 to 2018. They did not enter a civil partnership and did not marry. After many years of discussion, they eventually decided to start a family. They explored the option of using a fertility clinic but concluded that the costs were too prohibitive. Fortunately, a willing friend donated his sperm which was artificially inseminated at home. The parties agreed that the respondent would be the birth mother, as she maintained that this was crucial to allow her to bond with the child. It was therefore the respondent's egg that was fertilised.

The parties' child was born in January 2016. The respondent's name was entered as the child's mother on the birth certificate. As a birth mother, the respondent was also the legal mother and therefore automatically had parental responsibility. The applicant's name, however, could not be entered on the birth certificate as the parties did not undergo the artificial insemination at a Human Fertilisation & Embryology Authority (HEFA) registered clinic. Had the insemination taken place at a registered clinic and the parties had been either (1) civil partnered or married, or (2) not civil partnered or married but they had completed the correct forms and both parties provided written notice to the clinic consenting to parentage before the treatment, then the applicant would have been legally recognised as the child's second parent. Unfortunately, they did not choose to use such a clinic, and so the applicant had no legal status in relation to the child and as such, did not have parental responsibility for him. The parties were aware of this and discussed the need to formalise the applicant's legal status and parental responsibility, but with the excitement surrounding the arrival of their new-born, these steps were never taken.

During the course of the parties' relationship the applicant played an active parental role. She changed her surname to match the respondent's and child's surname. When he was 3 months old, she gave up her job to care for him whilst the respondent continued with her studies. She took responsibility for day-to-day care, including taking him to nursery...