For many families, the question “Who are the child’s parents?” has an obvious answer. However, being a biological parent and being a legal parent are not always the same thing.
Families are formed in many different ways. IVF, donor conception and surrogacy mean that the person who is genetically related to a child will not necessarily be the person the law recognises as their parent.
This distinction can be particularly important for same-sex couples and families created through assisted reproduction.
The law distinguishes between different concepts of parenthood, including genetic, gestational and legal parenthood. Understanding who is legally recognised as a child’s parent from birth is therefore an important part of planning a family through assisted conception.
What law governs legal parenthood following assisted reproduction?
The key legislation governing legal parenthood following assisted reproduction is the Human Fertilisation and Embryology Act 2008 (HFEA 2008). The Act sets out who will be treated as a child’s legal mother, father or second female parent where a child is conceived through assisted reproduction.
Importantly, legal parenthood is not determined solely by genetics: the circumstances of conception, the relationship between the intended parents and, in some cases, whether the necessary consent requirements have been met can all affect who is recognised as a legal parent. This is why the legal position should be considered carefully when using IVF, donor sperm or other forms of assisted conception.
Who is the legal mother following IVF?
The starting point is relatively straightforward: the woman who gives birth to the child is the child’s legal mother.
This remains the case where a donor egg has been used, meaning the woman who gives birth does not need to have a genetic connection with the child to be their legal mother.
The position of the child’s second legal parent, however, can depend on the circumstances in which the child was conceived.
Can a child have two mothers?
Strictly speaking, no.
Where a woman gives birth following assisted reproduction, another woman can potentially be recognised but as the child’s ‘second parent’.
For example, where the birth mother is married to or in a civil partnership with another woman, her spouse or civil partner can generally be treated as the child’s second parent, subject to the relevant statutory requirements.
Where the couple are not married or civil partners, it may still be possible for the non-birth mother to become the child’s legal parent, but particular consent requirements apply.
Does the sperm donor become the legal father?
Again, it depends upon how conception takes place.
Where donor conception takes place through an appropriately licensed fertility clinic, the Human Fertilisation and Embryology Act 2008 contains provisions which determine who will – and who will not – be treated as the child’s legal parent.
The position can be very different where families choose an informal or “DIY” donor arrangement. Informal assisted-reproduction arrangements can result in a child being conceived in circumstances which do not produce the legal outcome the intended parents expected. That can have significant consequences for everyone involved.
Legal parenthood and parental responsibility are not the same thing
Another important distinction is between legal parenthood and parental responsibility.
Legal parenthood determines who the law recognises as a child’s parent.
Parental responsibility concerns the legal rights, duties, powers and responsibilities a person has in relation to a child and their upbringing.
Being a legal parent does not necessarily mean that a person automatically has parental responsibility in every circumstance, and a person who is not a legal parent can, in some circumstances, acquire parental responsibility.
This distinction can be particularly relevant in modern families where more than two adults play a significant parental role in a child’s life.
Can a child have more than two legal parents?
Under the current law, a child can have a maximum of two legal parents. That can create a distinction between the child’s legal family and the people who actually fulfil parental roles in their everyday life. For example, a child might be raised by two mothers while maintaining a relationship with a known donor. The fact that all three adults may play important roles in the child’s life does not mean that all three can simultaneously be the child’s legal parents.
There may, however, be other ways in which someone who is not a legal parent can obtain legal recognition of their role, including through parental responsibility or appropriate child arrangements orders depending upon the circumstances.
What about surrogacy?
Surrogacy introduces another layer of complexity.
The woman who gives birth is the child’s legal mother at birth, even where she is a surrogate and has no intention of raising the child. The intended parent or parents will usually therefore need to obtain a parental order following the child’s birth in order for legal parenthood to be transferred.
The court’s decision on whether to make a parental order is ultimately a welfare decision, with the child’s lifelong welfare being the paramount consideration.
Why take legal advice before starting fertility treatment?
For most people undergoing fertility treatment, the legal paperwork is understandably not the exciting part of starting a family. But decisions about where treatment takes place, whose gametes are used, the relationship status of the intended parents and the consent forms completed before treatment can all affect legal parenthood.
Seeking specialist family law advice before treatment or conception, particularly where a known donor or informal arrangement is being considered, can provide clarity about everyone’s intended legal position from the outset.
Modern families come in many forms. The important thing is ensuring that the legal arrangements properly reflect the family you intend to create.
