As the number of same-sex couple families has increased by over 25% in the last 10 years, our Family team has received a growing number of enquiries in respect of who has parental responsibility.
Section 3(1) Children Act 1989 defines parental responsibility as having all of the rights, duties, powers, responsibilities and authority over a child. It is automatically acquired by a married mother and father, or through one of the mechanisms listed in Section 4 of the Children Act in situations where the parents are not married (such as registering the father’s name on the child’s birth certificate, entering into a parental responsibility agreement or obtaining a court order).
However, where the child is conceived through assisted reproduction, the rules are defined in the Human Fertilisation and Embryology Act 2008 (HFEA) as follows:-
Section 33 HFEA – a mother who gives birth to a child (gestational mother) will be regarded as the legal mother.
Section 42 HFEA – a non-birth mother will be a legal parent of the child where the couple were in a civil partnership or married at the time of artificial insemination.
Section 43 & Section 44 HFEA – where the parties are not in a civil partnership or married, a non-birth mother will only be treated as a legal parent where artificial insemination took place at a licensed clinic.
Where the parties are not in a civil partnership or married and the assisted reproduction occurred at home and not in a licensed clinic, parental responsibility must be acquired through a Child Arrangements Order.
If a couple commission a surrogate to have a child, they will not automatically have parental responsibility at the time of the child’s birth and a court Order must therefore be obtained to transfer parental responsibility to the commissioning parents.
It is important to know your rights, duties, powers and responsibilities for a child. A member of our experienced Family team are able to advise you on whether you have parental responsibility and how you can obtain this. If you wish to discuss this, we are able to offer you a free 30 minute consultation.To speak to one of our Solicitors, please call on 08000 147720 or send us an email.