Having Children in a Female Same Sex Couple

Female same sex couples having children using fertility treatment historically came across legal hurdles to both parties being recognised as legal parents. Whoever gave birth to the child would be the child’s “legal mother”, but the other parent would not be recognised as a legal parent automatically. Legal parentage is very important as it provides a parent with parental responsibility.  Only people who hold parental responsibility for a child can make important decisions for their child. Such decisions include whether a child should receive medical treatment.

Legal Guardianship

The Human Fertilisation and Embryology Act 2008 allows both women to be recognised as legal parents if: –

• They were married or in a civil partnership before the date of the embryo transfer/artificial insemination.
• Or, if the women are not married/in a civil partnership, they can both still be recognised as legal parents if they have both signed the correct parenthood nomination forms.

In any event the non-gestational parent (the person who does not carry the baby) must consent to the other parent (the person carrying the baby) receiving the fertility treatment. Consent does not have to be in writing although fertility clinics in England and Wales will not offer treatment without it.

Potential Issues

Issues can arise where fertility clinics outside England and Wales are used. This is what happened in the recent case of Re S (Children: Parentage and Jurisdiction) 2023 EWCA Civ 897. In this case, the couple were civil partners, and the fertility treatment took place in an American clinic. Because no written consent was given by the non-gestational parent, the court had to look at all of the circumstances of the case to decide if she was in fact the legal parent. The Judge looked at her involvement in the selection of the sperm donor, attendance at the birth. The support given to the gestational mother and involvement herself in the children’s lives. 

The decision has been hailed as a historic win.  By the time that the case came before the English courts the children were living in the Middle East where same sex relationships are criminalized and a non-biological same sex parent would therefore not be able to apply to the courts in the Middle East for any orders in relation to the children.

How Pinney Talfourd can help

Our Family Law team are experienced in LGBTQ family law and are happy to offer legal guidance to same sex couples who are looking to start a family together. For more information, please contact one of our solicitors.