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Should same sex couples take legal advice before starting a family?


Same sex couples need no reminder of the impact the law can have on their private lives. As we mark 50 years since the 1967 Act, and rightly celebrate the enormous progress that has been made – equalisation of the age of consent; same sex marriage; Gender Recognition Act to name but a few milestones, it is important that we remember there are still areas where the law has the potential to have more impact on same sex couples than on their heterosexual counterparts.
Growing numbers of same sex couples are now doing what typically married couples have always done, settling down and starting a family. For same sex couples wanting a biological connection to their child, the journey to parenthood will necessarily involve a third adult, be it a sperm or egg donor and/or a surrogate. Whilst this can also be the case for heterosexual couples, for same sex couples biology dictates it is always the case. Having to rely upon a third adult makes same sex couples more vulnerable to the legal complications that can arise if the relationship with the third adult breaks down and/or all legal consents and processes are not properly followed to ensure the intended parents are the actual legal parents of the child subsequently born. Introducing a third adult brings with it huge potential for an unintended legal relationship to be established between the third adult and the child.
Added to this is the increase in the number of same sex couples travelling abroad for their fertility treatment or to find surrogates. This adds a further layer of legal complexity. Both the laws of the country of treatment and the laws of the country where the couple intend to raise their family need to be complied with to ensure the parent/child legal relationship is as it’s intended to be. Where there is a conflict of laws between the two jurisdictions it is extremely important to understand which takes priority and to ensure this matches the expectations of all concerned. This needs addressing at the outset to avoid potentially legally irreparable consequence for the couple and their child. The law governing this area is particularly complex and fast moving.
Same sex couples are more likely than heterosexual couples to consider entering into a private arrangement to conceive a child with a well-meaning trusted friend. However, in making these private arrangements, same sex couples need to be aware that the law governing the identity of a child’s parents in these circumstances are very different from the law governing parentage where a child is conceived as a result of fertility treatment in a UK licensed clinic. At a clinic, all parties will be medically screened and also required to sign complex consent forms which are designed to try and minimise the possibility of unintended legal consequences for a child’s parentage at birth. Obviously, with a private arrangement, no consent forms are signed and this means in most cases the identity of the child’s parents will be determined purely by biology which can result in totally unintended consequences of parentage. The ramifications of this will then extend throughout the child’s life in relation to matters such as nationality and inheritance if not addressed.
Given the added potential complications, same sex couples considering starting a family should always take full legal advice before they embark upon their journey to ensure the end result in terms of legal status and responsibility is as they wish it to be. A failure to do this may result in a situation where only one of them has parental rights in respect of their child. If there is an international component it is essential that all nationality and immigration issues are properly resolved before their baby is born.
More information can be found on the website.

Liz Bottrill
Liz Bottrill
Liz Bottrill is a Partner in the Family Law Team at Laytons Solicitors with over 25 years’ experience in the field. She has a particular interest and expertise in the law relating to children and fertility.

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