Children of same sex families

Sir Elton John and David Furnish, one of the first same sex couples to marry in December 2014 and who have two children born through surrogate IVF, have criticised comments made by those in the fashion industry that such children are synthetic

There have been a number of changes to the law relating to children of same sex couples in recent years. The law remains complicated and the changes are not retrospective. Although three pieces of legislation have been introduced in recent years, the subject remains a minefield legally and undoubtedly those who have no means of having children who are genetically related to at least one party, whether same sex or heterosexual, find comments that their children are synthetic hugely hurtful.

Surrogacy in England and Wales isn't illegal unless it is entered into as a commercial transaction. Male same sex couples may approach a surrogate and enter into a surrogacy agreement. Payment of expenses can be agreed but no payment for the child must be made. Surrogacy agreements are not enforceable inaw.

A child born to a same sex male couple is often through full surrogacy which is arranged using an egg donor, a surrogate mother and the sperm of one of the same sex couple. This means that the woman who is the surrogate has no genetic link to the child born and is likely therefore to have less of an emotional attachment. One of the couple is the biological father of the child.

A parental order can be made in favour of the same sex male couple in respect of a child born to a surrogate. A parental order has the same legal effect as being an adoptive parent. This is relatively recent law though. The Human Fertilisation and Embryology Act 2008 sets out who are the legal parents of a child born after sperm donation or artificial insemination or other fertility treatment.

Many same sex couples continue to enter into informal arrangements. Although there are licensed clinics in the UK, private arrangements entered into are not illegal and many lesbian couples will approach someone they know for sperm donation whether through a clinic or not. Whether or not the sperm donor is the father, with legal obligations financially to the child, depends on the method of insemination, if insemination took place informally or at a licensed clinic, if the mother is in a same sex civil partnership or gay marriage and whether or not the mother partner consented.

If you don get the law right, you can end up with no legal rights at all or with obligations you don't want such as the payment of child maintenance or other financial provision for a child.

Emsleys Solicitors has experts who can help you through the complex legislation relating to children of same sex couples to find out what your rights and legal obligations are.

Contact our Head of Family Law Gabbie Clasper on 0113 201 4902 or email gabbie.clasper@emsleys.co.uk to arrange an initial free consultation.