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LGBTQ+ History Month – reflecting on changes to family law and looking to the future

Posted on 24 February 2021

February 2021 is LGBTQ+ History Month. From a family law perspective it is a month which has provided the opportunity to reflect on some of the significant developments for LGBTQ+ families in the past 20 years, whilst considering what further progress remains to be made.

The legislation governing family law and approach of the courts has been forced to change in response to changed family structures - what was once considered the traditional family model is no longer the case. It was only some 16 years ago, that it became possible for same sex couples to enter into a legally recognised relationship with the enactment of the Civil Partnership Act 2004, which came into force in December 2005. In 2013, marriage was finally extended to same sex couples and many same sex couples converted their civil partnerships to marriage at that time.

Historic background

Same sex female relationships: In 2009, provided certain conditions were met, it became possible for the non-birth mother in a same sex female relationship to be legally recognised as a child's second legal parent. Section 42 of the Human Fertilisation and Embryology Act 2008 (HFEA 2008) extended legal parentage by allowing the civil partner of a woman who was in a civil partnership at the time of treatment (now extended to a woman in a same-sex marriage since 2013) to become a second legal parent of a child, unless it was shown that she had not consented to the mother's treatment.

Therefore, the legislation had the effect of putting female civil partners and same-sex spouses on the same legal footing as heterosexual civil partners and married couples. The Human Fertilisation and Embryology Authority's Family Formations report, published in September 2020, showed that more female same-sex couples were having fertility treatment than ever before. In 2000, female same sex couples had 471 IVF and DI cycles. By 2018 this had increased to 4,750 cycles.

Surrogacy: Prior to 1990, there was no specific legal mechanism by which parents who had a child born via a surrogacy arrangement could be legally recognised as a child's parents. That changed with the introduction of Parental Orders pursuant to the Human Fertilisation and Embryology Act (1990 (HFEA 1990). At that stage, however, those Orders were only available to be obtained by heterosexual married couples.

It was not until 2010 that it became possible for unmarried couples and same sex couples, whether married or unmarried to be able to apply for Parental Orders in surrogacy cases. The change in the legislation has resulted in surrogacy increasingly becoming an option for same-sex and transgender couples wanting to have a child, and most importantly for these couples to be legally recognised as the child's legal parents.

Adoption: Until the enactment of the Adoption and Children Act 2002, which came into force in 2005, it was only possible for married couples to adopt a child. However, since then unmarried couples and single applicants have been able to apply for adoption orders. The Equality Act 2010 provides protection from discrimination for LGBTQ+ adopters; adoption agencies must assess all applications fairly using the same criteria whatever the potential adopters' sexual orientation. According to CoramBAAF, the adoption and fostering academy, during the year ending 31 March 2020, 17% of children were adopted by same sex couples either in a civil partnership, married or neither.

Emerging issues and looking forward

Surrogacy: At present, whilst surrogacy is not "illegal" in England, commercial surrogacy arrangements are prohibited and as such the law prevents commercial surrogacy and advertising for surrogates. This can make it very difficult for intended parents whether heterosexual or same sex to locate a surrogate in the UK other than on an altruistic basis. As a result, intended parents often look to travel abroad to countries where the framework surrounding surrogacy is less restrictive. Whilst the majority of US states and Canada offer the option of entering into surrogacy arrangements to same sex couples, many couples also look to jurisdictions where the process may be less expensive. There remain a number of countries where it is not possible for same sex couples to enter into surrogacy arrangements, including at present Ukraine, Russia and Greece.

The principal piece of legislation in respect to regulation of surrogacy in the UK is now over 35 years old and widely considered to be outdated and no longer relevant. The Law Commission's consultation in respect to surrogacy reform closed in 2019 and its final recommendations are expected in 2022. The Law Commission's initial proposals include a suggested new pathway for domestic surrogacies allowing intended parents to become a child's legal parents at birth, together with a range of safeguards applying before a surrogacy arrangement is entered into. The recommendations are eagerly awaited by heterosexual and same sex intended parents, as there remains a pressing need for reform and a need to bring legislation in line with developments in science and societal changes.

Co-parenting arrangements: There has been an increase in contentious litigation before the courts as a result of co-parenting arrangements entered into, frequently in situations whereby a man/same-sex couple donates sperm to a female couple. As referenced earlier in this article, as a result of the HFEA 2008, female couples who are in a civil partnership or married at the time that the birth mother conceives (provided the non-birth mother consents to the treatment) will both automatically be the child's legal parents. In that situation, as it is only possible for a child to have two legal parents, the biological father would not legally be his child's parent. However, the biological father is able to make an application to the court for parental responsibility and for a "child arrangements order" which governs a child's living arrangements and how their time is spent.

The increase in litigation in respect to such arrangements, tends to arise where parties do not have a clear understanding of each other's expectations, including in respect to the role that they will play in the child's life following birth. Whilst some couples do enter into co-parenting agreements prior to birth, those agreements are not binding and in the event of a dispute the court must intervene. However, a number of cases which have come before the courts in such circumstances result in protracted and very difficult litigation.

Ultimately, the court will be required to exercise its discretion based on an assessment of what is in a child's best interests at that time, rather than an agreement reached prior to birth. Clearly, any parties entering into such arrangements should do so on an informed basis with early legal advice in order to ensure that the legal position is properly understood by all parties.

Transgender parenting: Another recent issue has been the question of how the legal parentage of a child born to a transgender parent should be registered on their birth certificate.

Freddy McConnell, a transgender man, gave birth to a child as a result of intrauterine insemination fertility treatment with his own eggs in January 2018. Prior to the child's birth Mr McConnell had obtained a Gender Recognition Certificate confirming legal recognition of his gender pursuant to the Gender Recognition Act 2004.

The Registrar General registered Mr McConnell as the child's 'mother' on the birth certificate, an action which Mr McConnell challenged wishing to be named on the birth certificate as the child's father or parent.

Mr McConnell's case was heard by the High Court in 2019 and the Court of Appeal in 2020. Both ruled that although Mr McConnell was a man by law, having obtained a Gender Recognition certificate, he could not be registered on the child's birth certificate as the child's father or parent.

Whilst the court recognised and considered Mr McConnell's Article 8 ECHR right to privacy and family life, it came down in favour of the right of a child born to a transgender parent to know the reality of their birth, rather than the parent's right to be recognised on the birth certificate in their legal gender. Mr McConnell's appeal to the Supreme Court was refused in 2020. The case highlights that whilst the courts have come some considerable way in recognising the modern family, there remain some very difficult issues to grapple with. This is particularly the case for transgender parents who are able to achieve full gender recognition in some respects but not others.

Whilst the courts continue to contend with new and evolving modern family situations and calls for reform of legislation continue, it is clear that the past 20 years have resulted in some very significant and positive developments for LGBTQ+ families. It is hoped that further progress will continue to be made.

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