In the UK, we’re fortunate to live in an open-minded inclusive society, but the law has not always reflected that – as recently as the 1990s, UK legislation actively discriminated against non-traditional families seeking fertility treatment to become parents. But the past 15 years spans a legal and social revolution for same-sex parents, and it is now easier than ever before for LGBT parents to start a family in the UK.
As the UK marks the 50th anniversary of the decriminalisation of homosexuality (following the Sexual Offences Act 1967), here is an overview of some of the key milestones in the journey to increase access to family-building options for same-sex couples:
1990: the Human Fertilisation and Embryology Act introduced regulation for UK fertility clinics. Under the new law, fertility clinics had to consider a child’s ‘need for a father’ before offering treatment, aiming to restrict fertility treatment for single women and lesbian couples.
2004: the Civil Partnership Act created – in all but name – marriage for same-sex couples, giving property, pension, inheritance and other benefits to couples who registered as civil partners.
2005: same-sex partners were allowed to adopt their partner’s children, and couples were allowed to adopt unrelated children together. For the first time, children in the UK could have legal parents of the same sex.
2008: following a review of 1990 laws, fertility clinics no longer had to consider the child’s “need for a father”, and it was made clear they should not discriminate against same-sex couples. New parenthood laws also enabled female same-sex couples to be recorded on their children’s birth certificates together if they conceived through sperm donation, and enabled male same-sex couples to apply for a parental order (giving them a birth certificate recording them both as their child’s legal parents) if they conceived through surrogacy.
2015: same-sex parents with a child born through surrogacy were given the right to adoption leave (so that one parent could claim the equivalent to maternity leave and pay, and the other paternity leave and pay).
2016: a key High Court decision ruled that the law discriminated unfairly against single parents who conceived through surrogacy. In response, the government announced plans to change the law to allow single parents – as well as couples – to become the legal parents of a child born through surrogacy.
What does the future hold?
We have come a long way over the past 15 years, but we are not quite there yet. There remains problems with the law on surrogacy, and for birth certificates for transgender and multiple-parent families.
In relation to surrogacy, the good news is that there is a growing consensus in favour of modernisation. The current law has not been reviewed since the 1980s and is widely recognised as being long overdue for an update. Surrogacy agreements are not recognised by UK law, and it is illegal to advertise for a surrogate. The surrogate and her husband are the legal parents of the child when he or she is born, and parenthood is only transferred to the intended parents following a court process which takes up to a year after the birth and has problematic and outdated criteria.
NGA Law and our sister organisation, non-profit surrogacy agency Brilliant Beginnings has been campaigning for surrogacy law reform (and other progressive reform supporting modern families) since 2007. We want to see recognised surrogacy agreements and pre-birth orders so the right people are recognised as the legal parents of their child immediately from birth, with greater protection and clarity for all involved. We are increasingly confident that reform is on the horizon – the Law Commission is currently considering whether to undertake of review of surrogacy law and the Department of Health is in the process of drafting new guidance on surrogacy.
So, change is still needed – but we shouldn’t lose sight of how far we have come in LGBT parenting in the UK, and celebrate what a fantastically open-minded and diverse country this is to bring up children.
Lisa Charlwood Green will be joining me at the Fertility Show to talk to about her experiences of parenting:
‘My wife and I have had a really positive experience of pregnancy and parenting – and feel extremely lucky that we have been able to have our two sons with a known donor, who is very much involved in our lives.
With our first child, we were already in a civil partnership, and despite the fact that the law had been reformed the previous year, the registrar seemed unfamiliar with the changes and it took us two long hours to register the birth to ensure both our names were on the certificate. I’ve also experienced some ignorance about LGBT parenting in the workplace, with hurtful comments from colleagues, and even an isolated case of discrimination from a midwife, who asked me to leave the room during a follow-up appointment following my wife’s labour.
Thankfully, I think that recently there has been a shift in the understanding of LGBT rights in parenting and so, for example, registering the birth of our second child was a much more positive experience. There is still a way to go though – the law is weighted against gay male couples and children, with the surrogate still being seen in the eyes of the law as the parent.
My advice for any same-sex couples wanting to pursue parenthood is that they need to get their “ducks in a row”.’
Natalie Gamble of NGA Law is speaking at the Fertility Show, Olympia, London, 4-5 November 2017 with sessions on Surrogacy Arrangements and LBGT Parenting in the UK.