Starting a family is an issue which many people consider during their lifetime. For some, it may happen very easily. For others, much more planning is needed and it may involve a medical procedure.
For many in the LGBT+ community, careful consideration must be given to the different options available to them – not least because of the legal implications. Using a licensed clinic would seem to be the safest option all round but it is costly and therefore not an option for some. Thus, intra-cervical insemination / home insemination may be the only way to have that much-wanted child.
You can find more information about ICI treatment and the different methods of fertility treatment on the LGBT Mummies Tribe website here.
It is essential that you are aware of the legal implications when proceeding with artificial insemination outside of a licensed clinic. Whilst the birth mother or parent will always be considered the legal parent of the child, the situation for their partner is far from straightforward.
My Partner and I are Married/in a Civil Partnership
Providing you have inseminated artificially and your spouse / civil partner consented to you being inseminated, your spouse / civil partner will be the child’s legal parent. If it is your husband, he will be the legal father; and if it is your wife / civil partner they will be the legal second parent.
It is imperative that if you are married or in a civil partnership at the time you conceive, your spouse/civil partner consents to the insemination and the insemination is undertaken artificially and not through sexual intercourse.
If you conceive through sexual intercourse with someone other than your spouse / civil partner, the biological father will be deemed to be the legal parent. In such circumstances, in order for your spouse / civil partner to be the legal parent, the biological father would have to consent to your spouse / civil partner adopting your child and thus agree to no longer being the child’s legal parent.
My Partner and I are not Married nor in a Civil Partnership
This is a little more complicated. Even if your partner consents to your insemination, if you are not married nor in a civil partnership at the time you conceive, the sperm donor will be deemed to be the child’s legal father – unless you became pregnant as a result of fertility treatment at a licensed clinic and you, and your partner completed the correct forms. In such circumstances your partner will be deemed the child’s legal parent. However, away from the licensed clinic, you would have to go through the adoption process for your partner to become the second legal parent.
Acquiring second legal parent status
If you are not married nor in a civil partnership at the time you conceive by artificial insemination and conception does not take place in a licensed clinic, your partner can acquire second legal parent status by obtaining an adoption order. The adoption order, once made, defines who the child’s legal parents are and grants your partner parental responsibility alongside you, which gives them the right to be consulted upon key decisions in your child’s life such as education, medical treatment etc.
It can be a lengthy process which would start with your partner notifying your local authority that they wish to adopt. This must be done at least 3 months before applying to the court for an adoption order.
The child must have lived with you both for at least 6 months (so your child cannot be adopted by your partner immediately upon birth) before applying for an adoption order. These time-frames should be borne in mind when seeking to adopt.
A social worker will carry out an adoption assessment and will provide a report to the court detailing their recommendations to assist the judge in making a final decision. Once granted, your partner will be your child’s legal parent with you and the rights of the donor will be extinguished. Your child will be issued with an adoption certificate naming you and your partner as their parents. This replaces the child’s birth certificate.
For more information on the adoption process, you may find this page on the government’s website helpful.
Another option is to obtain parental responsibility either by agreement (both biological parents would need to consent) or through a court order. However, obtaining parental responsibility for a child does not extinguish any rights of the donor but it would give your partner the rights and responsibilities to make day-to-day decisions for the child.
In all circumstances, outside of a licensed clinic, we would advise that a written donor agreement is entered into by you, your partner and the sperm donor. Although these agreements are not legally binding, they can be used as evidence in court if a dispute arose in the future.
A judge will consider the agreement in order to assess the intentions of the parties and determine what is considered to be in the best interests of the child. The agreement should clearly set out the donor’s involvement (or lack of) with the child and, crucially, ensures that all parties are in agreement from the outset.
How can we help?
If you would like to find out more about the legal implications of conceiving through home insemination, or if you have a dispute regarding parental responsibility, our Family law team are on hand to help.
Call us on 0161 969 3131, or fill in our contact form and we will be in touch.