This information leaflet aims to explain about parental rights, responsibilities and some of the issues surrounding Legal Parenthood.
Legal Parenthood and parental responsibility are not the same. Parental responsibility can fall to several people connected to a child, until that child is 18.
Legal parenthood is a position that can be held by a maximum of 2 people, lasts a lifetime and can affect later generations of a family. It impacts the child’s birth certificate, nationality, inheritance and also who has financial responsibility and who can make medical decisions for the child.
A mother is defined as the person who gives birth to a child. This is irrelevant of any genetics e.g., in the case of egg donor, surrogacy etc.
The other legal parent is the mother’s husband, wife or civil partner.
In some circumstances, the unmarried partner of the “mother” may not automatically become the legal parent to the child. However, in these circumstances, paperwork would be completed to ensure both partners have consented to the partner becoming the legal parent.
In order to ensure that you and your partner (if you have one) are recognised as the legal parents of any child born from fertility treatment, it is essential that we clearly establish your marital status before you start treatment. You will be asked to complete a marital status form prior to starting any treatment, so that we can ensure that the correct consent forms are completed to cover the legal parenthood of any child born from treatment. Any required consent forms must be completed prior to treatment and cannot be put into place retrospectively.
It should be noted that a civil partnership is not the same as living together. A civil partnership is a legal partnership similar to marriage.
If you are unsure whether your marriage or civil partnership is legally recognised in the UK, e.g., you were married abroad, or you have had a wedding ceremony that might not meet the legal requirements of UK law, please raise this with a member of staff. Failure to correctly identify marital status – according to law – can have serious consequences for patients and any child born as a result of treatment.
If you are in a relationship, but still married to someone else, it is vital you speak to a member of staff. This can have an impact on the legal parenthood of any child. You are strongly advised to seek legal advice prior to any treatment commencing.
Below are a few scenarios, to help explain:
1. Heterosexual relationship where couple are married / civil partnership:
- Whether using the husband’s sperm or donor sperm, the husband / civil partner will be the father to any child.
- If donor sperm is used in IVF, the husband / civil partner may be asked to complete paperwork to allow them to be named as legal parent, should they die during treatment.
- Should the husband / civil partner not wish to be legal parent to a child they will need to show they did not consent to any treatment. Legal advice is advised. Consent can only be withdrawn prior to the embryo being replaced/Insemination procedure.
2. Same sex relationship where the couple are married / civil partnership:
- Wife / civil partner will automatically be 2nd legal parent to any child
- If having IVF (not donor insemination), wife / civil partner may want to complete paperwork to allow them to be named as legal parent should they die during treatment.
- Should the husband / civil partner not wish to be legal parent to a child they will need to show they did not consent to any treatment. Legal advice is advised. Consent can only be withdrawn prior to the embryo being replaced / Insemination procedure.
3. Any unmarried couple using Donor Sperm:
- Both partners need to complete paperwork to ensure the partner not having treatment, is named as 2nd Legal Parent.
- Should either partner wish to withdraw their consent to the legal parenthood, this can only be done prior to embryo transfer / insemination procedure.
- Under no circumstances will the sperm donor be seen as the legal parent.
4. Shared Motherhood:
- The partner who gives birth will automatically be mother to any child.
- If married or in a civil partnership, the partner donating their eggs will automatically be the 2nd legal parent.
- If not married or in a civil partnership, both partners would need to complete paperwork to ensure the partner donating their eggs is named as 2nd legal parent. Being genetically related to any child, does not automatically give any rights to legal parenthood.
Withdrawal of consent must be prior to any embryo transfer.
5. Single Women:
- A single woman would be the only legal parent
- A sperm donor will not be named as 2nd legal parent
- If separated but still legally married, the husband, wife or civil partner would still be legal parent to any child. Legal advice is required. Paperwork can be completed to help with preventing this.
6. Embryo Donation:
- The mother is the person who gives birth to any child.
- The husband, wife or civil partner of the mother is the 2nd legal parent
- If unmarried, paperwork to be completed to ensure their partner is the 2nd legal parent.
- If a single woman uses donor embryos, the law is unclear about whether the male donor may have responsibilities as a legal parent. Donors are, therefore, advised to gain legal advice and may stipulate that their embryos cannot be donated to single women.
7. Surrogacy:
- The mother is the person who gives birth to any child.
- If married or in a civil partnership at the time of embryo transfer or insemination, their partner is the 2nd legal parent.
- Neither “Intended Parent” will be legal parents.
If the surrogate is unmarried or single, the “Intended Parent” whose sperm was used in treatment would be the 2nd legal parent.
- If the “Intended Parents” are in a same sex relationship, either can be nominated as 2nd legal parent
- The Intended Parents then need to apply to the courts for a parental order to become legal parents.
8. Transgender Patients:
- While a Gender Recognition Certificate allows transgender patients to be legally recognised in their chosen gender it does not affect their status as mother, father or 2nd legal parent. This is determined by their gender at birth.
- A woman who has a child and then transitions to male will remain mother to the child.
- A transgender man who goes on to give birth will be mother to that child.
- A transgender woman, whose sperm is used in a female partner’s treatment, will be father to any child.
- A transgender man, whose partner gives birth will be named as 2nd legal parent.
Legal parenthood is a complicated issue and can be very costly if not correct. Forms cannot be completed retrospectively, and mistakes must be heard in a family court to be rectified.
Contact Us
If you are unsure of your circumstances or have any questions, please do not hesitate to contact a member of staff.
Telephone: 0191 445 2768 (Direct Line)
Email: [email protected]
Websites
The following websites also contain useful information about these issues:
http://www.direct.gov.uk/en/Parents/ParentsRights/DG 4002954