Pride Month: family-building in the LGBTQ+ community

Known donor and co-parenting arrangements are popular parenting choices for LGBTQ+ individuals and couples. This is because relationships between the adults are often well-established and there is an option, where agreed, for the child to have a relationship with their donor.

In any known donation or co-parenting arrangement, it is advisable to enter into a bespoke pre-conception agreement that records what has been agreed between the adults. Whilst this will not be legally binding, an agreement will be a helpful exercise to force discussions and ensure that everyone involved is clear about post-birth arrangements and what everyone’s role will be. In our experience, successful known donor and co-parenting arrangements are those that are well planned in advance with tricky conversations managed upfront.

The legal parenthood position should also be a key consideration in any donor or co-parenting arrangement. This is because under UK law a child can only have two legal parents and the parent who gives birth will always be the legal mother. Who is the child’s other legal parent is more complex and will vary depending on the status of everyone involved and how and where conception takes place.

In some donor and co-parenting arrangements, family court orders are needed following a child’s birth to confirm arrangements or a person’s legal status. This can sometimes be the case even if there is no dispute - for example, an unmarried non-birth lesbian mother may need to apply for an adoption order post birth to secure her status as a second legal parent. In some situations, declarations of parentage and declarations of non-parentage are also required to ensure that a child’s birth certificate, following donor and co-parenting arrangements are accurate.

Since 2005, same-sex and LGBTQ+ individuals have had the legal right to adopt in the UK meaning LGBTQ+ applicants cannot be rejected solely based on their sexuality or gender.

Generally, anyone living in the UK who wishes to adopt a child will be required to undergo an assessment by either a local authority or private adoption agency who carry out background checks, home visits, references and interviews on the applicants. The purpose of the assessment is to check that the person wanting to adopt is “suitable”. Once the assessment is completed a report is reviewed by an adoption panel who then decide whether to approve the applicant as an adopter. There is then a period of waiting until a match takes place.

Once an adoption order has been made by the family court, legal parenthood is transferred from the child’s birth parents to the LGBTQ+ adoptive parent/s and a new adoption certificate is issued confirming this legal position. An adoption order is intended to be a permanent solution and requires the birth parents’ involvement and where relevant, consent unless the court have dispensed with this requirement. 

International adoption for LGBTQ+ individuals or couples is also an option but this requires careful planning as there are several additional factors to take into account for example, the laws of the country in which the child lives, the UK regulations regarding intercountry adoption and immigration considerations as this often requires careful and advance planning. As some countries do not recognise the legal rights of LGBTQ+ individuals and may have explicit restrictions against LGBTQ+ adoption, particularly those with a more conservative culture or religious views, it is essential for LGBTQ+ individuals or couples to carefully research and take advice and guidance from professionals with expertise and experience in international adoption law before progressing any plans.

There are various groups that offer support and advice to the LGBTQ+ adoptive parents such as, New Family Social - Home and CORAM IAC who we work closely with. 

Surrogacy is a popular family building option in the LGBTQ+ community particularly, for same sex male couples. Whilst it is legal in the UK, there are lots of rules and restrictions relating to its operation for example, you cannot advertise that you are looking for a surrogate, enter into a legally binding surrogacy contract or pay a surrogate anything other than reasonable expenses. In reality this means that finding a surrogate in the UK can often be a challenge unless you have a friend or family member willing to help or, you work with a surrogacy agency (the main three agencies in the UK being Surrogacy UK, Brilliant Beginnings and My Surrogacy Journey) to help find a match.

Under UK law it is the surrogate, as the person who gives birth, who is treated as the legal mother. If she is married or in a civil partnership her partner will automatically be the legal father/second legal parent. This is the fixed legal position upon birth and applies irrespective of biology and what everyone intends. If the surrogate is single, the biological father will automatically be the legal father unless, conception takes place at a registered UK fertility clinic and parenthood nomination forms are signed in advance nominating the non-biological father or intended mother as the second legal parent. Once the child is born, the initial birth certificate will reflect the initial legal parenthood position meaning at least one person, in the event of a couple, will not be listed on the child’s birth certificate and for individuals, a surrogate will be on the birth certificate.

The UK legal solution to transfer legal parenthood following surrogacy is the parental order, a post birth order made by the family court some months following the birth. Once made, this order fully and permanently extinguishes the surrogate’s legal status (and if relevant, the legal status of her partners) and parenthood is then transferred to the intended parent/s.

Throughout the court process the intended parent/s will need to demonstrate how they meet a number of legal criteria and the court will need to be satisfied that the surrogate consents fully, freely and unconditionally to the making of the order.  

Parenthood laws lag behind societal changes in the trans and non-cis gender community, meaning legal parenthood is dictated by laws for cis-gender parents which can create discomfort and confusion. Thankfully, these laws are not a bar to trans and non-cis individuals creating families, in any of the ways described above. However, the legal position does need to be carefully explored in advance. 

If you are transgender and give birth to a child in England you will be recorded as your child’s ‘mother’ even if you have a gender recognition certificate confirming you are legally male or identify as male. If you are the partner of a parent giving birth and you are trans, the position is a little more complex and how you will be recorded on the child’s birth certificate will depend on your marital status and how and where conception took place. 

For gender curious children and their parents, it remains an uncertain and, in some situations an extremely worrying, time following the closure of NHS Tavistock and Portman’s Gender Identity Development Service and the publication of The Cass Review. In our experience, this has left many families in a state of flux not knowing where to turn and how to deal with incredibly sensitive situations and, in some cases, there have been referrals to social services causing panic and worry. Our experts have a wealth of experience in this area and can offer open and impartial advice.

Our children law team is proud to stand alongside the LGBTQ+ community this Pride Month and beyond. We understand that building a family can be a deeply personal and sometimes complex journey, particularly when navigating legal frameworks that may not always reflect the diversity of modern families. Whether you are exploring donor conception, adoption, surrogacy, or navigating parenthood as a trans or non-cis individual, we are here to provide tailored, sensitive, and expert legal support every step of the way. 

Russell-Cooke's leading children law team offers expert legal advice on the full spectrum of issues affecting families, specialising in family-building including surrogacy (domestic and international), donor conception agreements and assisted reproduction. Sarah Richardson is also Diversity and Inclusion partner at the firm.