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Registering parentage on a child’s birth certificate is important to secure parental rights and responsibilities, but can be a less straightforward process for LGBTQ+ couples, with unintended consequences, especially in the event of a future separation or death.
Parental Responsibility, or PR, is defined as all of the rights, duties, powers and responsibility a parent has. It can determine what steps a parent can take regarding a child.
A birth mother automatically has parental responsibility. The second parent does not automatically obtain parental responsibility, and certain steps may need to be taken to resolve this if they are not married to the birth mother at the time and/or do not appear on their child’s birth certificate. The situation can be even more complex for LGBTQ+ couples.
Registering a birth – current law for same-sex couples
Currently, the biological role that same-sex parents play in the creation of their children affects the ways in which the birth can be registered. The below steps presume that there is a biological connection between the newborn baby and at least one of the parents.
If a female couple are married or in a civil partnership, they can both be named on the birth certificate when registering the birth. Either mother can register the birth if the biological mother had a child by donor insemination or fertility treatment, and they were married / in a civil partnership at the time.
If a female couple are unmarried and not in a civil partnership at the time of the birth:
- The biological mother will automatically be included on their child’s birth certificate;
- Her partner could then be legally recognised as a second mother/second parent if:
- She and the biological mother receive fertility treatment together in the UK by a licensed clinic; and
- Together they have made a “parenthood agreement” – a clear, objective agreement to be a parent with the child’s biological mother.
- For both to be recorded on the birth certificate, they need to either:
- register the birth jointly;
- obtain a court document (e.g. a court order); or
- complete a statutory declaration of acknowledgement of parentage form, for one parent to bring at the birth’s registration.
If the above does not apply (e.g. insemination does not take place in the UK at a licensed clinic) then the non-gestational mother could not be added to the birth certificate as a second parent and so would not have parental responsibility. A couple would need to consider making an application for the non-gestational mother to adopt the child and/or enter into a parental responsibility agreement or apply to the court for a “lives with” Child Arrangements Order, which would automatically give the non-biological mother parental responsibility. In the event of separation, an application may need to be made to the court for a Child Arrangements Order and to obtain parental responsibility.
In order for two men in a same sex relationship (whether married, in a civil partnership or cohabiting) to be equally recognised as fathers, they must seek a parental order from a court. This is currently the only way. One of the fathers must also be considered the biological parent (i.e. a sperm donor for surrogacy or artificial insemination).
Transgender/non-binary identity and parentage
People who have transitioned or identify as non-binary before becoming parents may find themselves in uncertain territory when legally registering the birth of their children. How they may be registered, and the process, will be dependent on several factors.
A parent who carries and gives birth to a child is considered to be the legal mother of the child, meaning that this will be the word attributed to that parent on the child’s birth certificate, regardless of how they self-identify. Under present law, it is not possible to substitute the word “mother” for “parent” on the child’s birth certificate.
In the case of a trans parent who has a Gender Recognition Certificate and who is not the parent giving birth, where a child is conceived by way of embryo transfer or artificial insemination, it is thought that parent can be registered as the father/second legal parent in their acquired gender (following the statutory provisions of the Human Fertilisation and Embryology Act 2008). However, there is some uncertainty as this sits at odds with the Gender Recognition Act 2004, which states that a trans person must be recorded by way of their birth sex.
In the case of surrogacy, regardless of whether a trans parent has a Gender Recognition Certificate, once a parental order has been made and as long as there is a biological link to at least one parent, both parents will be considered to be the child’ legal parents and named as non-gendered parents on the birth certificate, regardless of which parent was the donor parent.
Currently, non-binary as a gender identity is not legally recognised in the UK. Therefore, in the case of a non-binary person who is also the biological father of a child through surrogacy, who is in a relationship with a cisgender man, because non-binary is not currently recognised as a legal gender identity, the relationship may be viewed as akin to a same-sex relationship, in which case a parental order may be required.
Comment
The above are just a handful of examples which highlight how legally-complex this area is. Clearly the language we use and how the law provides for evolving gender identities needs to be updated to accommodate for evolving family types and a range of gender identities.
In a world where gender identity is rapidly evolving and increasing numbers of LGBTQ+ people are looking to become parents, and be legally-recognised as their child’s parents, there needs to be greater clarity of the legal recognition of parentage, where currently outdated legal norms risk damaging the parent’s own gender identity and self-expression.
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