By Natalie Gamble, fertility law specialists with Natalie Gamble Associates 

The law has recently changed in a way which could affect co-parenting arrangements. Provisions in The Human Fertilisation and Embryology Act 2008 came into force on April 6th 2009 which affect the legal parenthood of donors and non-birth mothers in lesbian couples.


Co-parenting arrangements with single women

If a gay man donates his sperm to a single woman with the intention of co-parenting any resulting child, it is likely that he will be treated as the child’s legal father.  If named on the birth certificate, he will also have parental responsibility for the child, and so the right to be involved in key decision-making in the child’s upbringing.

His partner may also be able to acquire status in respect of the child and there are a number of options:

• If the couple are civil partners, they may sign a parental responsibility agreement (together with the birth mother) to confer parental responsibility on the father’s partner.  This will give the non-biological father authority to make parental decisions, although he will not be treated as a parent for the purposes of inheritance, making it important for him to put in place a will.

• If the couple are not civil partners, they may be able to apply for a joint residence order, again giving the non-biological father parental responsibility.

• Adoption is unlikely to be a suitable option, because one of its effects would be to extinguish the birth mother’s legal status as a parent, and this is usually not appropriate in co-parenting situations.

Those involved in the arrangement may wish to consider exploring their options and putting in place a co-parenting agreement.

If there is a breakdown in the co-parenting relationship (or in the relationship between the fathers), the court will have powers to make orders in the best interests of the child.  The various parties involved may have different rights to make different types of applications to the court, depending on the circumstances.


Co-parenting arrangements with lesbian couples

The legal position regarding co-parenting arrangements where a gay man/couple donates sperm to a lesbian couple is more complex.  Following the changes implemented by the Human Fertilisation and Embryology Act 2008, lesbian couples who conceive with donated sperm are likely to be treated as both being the parents of their child (see further above).  One of the effects of this is to exclude the status of the child’s biological father.

This means that, in respect of children conceived after 6 April 2009, a gay father who donates sperm to a lesbian couple may have no legal recognition as a parent.  If the lesbian couple he is donating to are civil partners, the father’s status will be automatically excluded.  If the lesbian couple he is donating to are not civil partners, the mothers may be able to choose whether they wish the child’s second parent to be the father or the non-birth mother.

Such situations are complex and legal advice is recommended.

  • Click here for Stonewall's new parenting guide, Pregnant Pause: A guide for lesbians on how to get pregnant.
  • Click here for Stonewall's new parenting guide for gay men, A Guide for Gay Dads.

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