In a recent judgment the President of the Family Division, Sir James Munby, asked the question "What, after all, to any child, to any parent, never mind to future generations and indeed to society at large, can be more important, emotionally, psychologically, socially and legally, than the answer to the question: Who is my parent? Is this my child?"
According to the most recent statistics available there are 18.6 million families in the United Kingdom. The law in England and Wales now recognises a diverse array of family and parental relationships – meaning that the answer to the President's question can be more complicated than it may seem at first sight.
The birth mother
In England and Wales, the "birth mother" of a child will always be considered to be the legal parent.
It is irrelevant whether the mother is the biological parent of the child - meaning a surrogate who has not used her own egg will be the legal mother for the purposes of UK law, even though she is not the biological mother. In a surrogacy situation, following the birth, the mother "transfers" her parentage to the commissioning parents by way of a "parental order" - providing the parties meet certain conditions.
The legal father
If the birth mother is married, her husband is automatically the legal father. So, in the surrogacy scenario, if the surrogate mother is married, her husband will be the legal father (unless he did not consent to the pregnancy), until parenthood is transferred by way of a parental order, as above.
If the birth mother is unmarried, she is solely responsible for registering the birth (even if she is cohabiting with the baby's father) - although the law is designed to try to compel her to name the father. It is a criminal offence to knowingly provide false information to the registrar upon registration.
The second female parent
In the case of same sex couples the "non-birth mother" can be recognised as the child's "second female parent."
The Human Fertilisation and Embryology Act 2008 (the "HFEA") allows same sex couples, if they are in a civil partnership or are married when the child is conceived, to be the legal parents of a child conceived through artificial reproduction, to the exclusion of the biological father. The biological father has neither rights nor responsibilities for the child.
An unmarried partner of a lesbian birth mother may become the second female parent provided that the insemination takes place at a registered clinic and she meets various conditions.
These provisions were introduced to ensure that same sex couples are on an equal footing with heterosexual couples, and to maintain the principle that a child has no more than two legal parents, but can create difficulties. A man who has donated his sperm in order to facilitate a pregnancy may well have an expectation of some involvement in that child's life.
There have already been a number of cases where the known biological father has had an understanding and expectation of their intended involvement with the life of the child which has not accorded with the involvement of the mother(s). Most recently, Re X (No 2: Application for contact by the biological father), in which a biological father sought contact in relation to an 18 month old child. The child was conceived through artificial insemination to a woman in a civil partnership. The birth mother and her civil partner were the child's legal parents. The "father" was the child's biological father, but he was not a legal parent.
First the father needed to make an application for permission to apply for an order in relation to the child – as he wasn't a parent he did not automatically have this right, but he successfully obtained permission. Having given him leave to make his application to spend time with the child, the Court had to make that decision by deciding what was in the child's best interests.
Having considered matters, the Court refused his application to spend time with the child. The two female parents feared that the biological parents would undermine their position as the legal parents. The birth mother had been diagnosed with situational anxiety. The child's development was dependent upon interaction with her care givers. Their pre-occupation with anxious thoughts may result in less responsive care, which may have an impact on the quality of care that she received.
The Court determined that spending time with the biological father would bring the child little positive benefit and would put at risk the security of her placement with her two female parents.
Family law, perhaps unlike any other area of practice, adapts and reflects a society which is more diverse and varied than ever before. This is a complicated area of law – and anyone considering arrangements of this sort should take specialist advice.
If you require further information on anything covered in this briefing please contact John Davies (email@example.com; 020 3375 7434) or your usual contact at the firm on 020 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, January 2016