Lesbian Pregnancy And Parental Rights: Whose Child Is It?

by | May 14 2021 | Family Law

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By Alex Ashcroft
Alex heads up LGBT Lawyers' web design and writes about LGBT legal issues in his spare time. While not part of the LGBT community himself, Alex is an avid supporter of LGBT rights. With interests in politics and connections in Brighton's LGBT music scene, Alex brings another valuable perspective to LGBT life.

Lesbian pregnancy options have come a long way in a short space of time. From IVF to surrogacy, it’s never been easier to have a child as two women. But if there’s only one biological mother, whose child is it and how can you best protect your new family?

This article looks at how lesbian couples can have a baby and lesbian parenting rights in the UK.

How Do Lesbians Have A Baby?

How you choose to start your family will depend on you and your partner’s personal wishes.

For many women, it’s important to have a biological connection to their child, while others want to experience pregnancy first-hand. Some women may not want to go through the discomfort of pregnancy and instead choose to adopt or foster children.

However, by far and away the most popular way to start a lesbian family is through pregnancy and luckily, there are many ways to do this.

IVF and IUI

Both IVF and IUI are ways to conceive through having a sperm donor. IVF normally uses donated sperm to fertilise an egg outside of the body, while with IUI, the sperm is inserted during ovulation to allow for natural conception.

Some couples choose to have a friend donate their sperm, while others choose anonymous donors. Either way, you should have the donor’s sperm screened for any genetic irregularities.

Many NHS trusts offer lesbian couples IVF or IUI, however you might need to cover some of the costs. Alternatively, private IVF treatments cost around £3,000 per cycle, and can be faster than using the NHS.

IVF is the most common, and widely available lesbian pregnancy option in the UK.

WHAT'S THE DIFFERENCE BETWEEN IVF AND IUI

Surrogacy

Surrogates are women who carry a baby on behalf of another couple. Most lesbian couples discount surrogacy simply because there isn’t a need for it. However, if you are both infertile, surrogacy might be one of your only options to have a biological child.

In the UK it’s illegal to pay for someone to be a surrogate. Instead, you’re allowed to cover your surrogate’s ‘reasonable living costs’. Many couples will choose to cover these costs for the duration of the pregnancy.

Surrogacy can be risky as the surrogate (and their spouse if they have one) is your child’s legal parent at birth. Your surrogate can choose to keep the baby and there can be little legal recourse if this happens. Some couples will enter into a surrogacy agreement with their surrogate, however these are not legally enforceable in the UK.

Perhaps not the most popular lesbian pregnancy option, surrogacy is more common amongst gay couples.

Intercourse with a man

Many lesbian couples discount this option for personal reasons, however some couples still opt to conceive in the ‘natural way’.

This is because it’s virtually free and avoids having to go to a clinic. However, there can be risks with conceiving naturally.

As many straight couples will tell you, getting pregnant isn’t that straightforward. It usually requires planning and multiple tries before an egg is successfully fertilised.

Added to that, there are risks of genetic issues and hereditary diseases passing to your child. These issues are screened for and filtered out when going through a fertility clinic.

In the UK, this is one of the least popular lesbian pregnancy options.

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Are there alternatives to lesbian pregnancy?

Yes, if neither you or your partner are worried about being biologically related to your child, you can adopt or foster a child.

However, bear in mind that adoption and fostering can take equally long, if not longer than having your own child.

Who’s legally the mother in a lesbian pregnancy?

This question causes a lot of confusion amongst lesbian couples, but thankfully the law is quite clear. It can be useful to look at where you both stand legally if you are considering having a child together.

Who is the baby’s legal mother?

If two women have a baby together, the baby’s legal parents are determined depending on how the pregnancy came about.

IVF or IUI

This comes down to 2 factors: whether conception took place in a licensed fertility clinic or at home, and whether or not you are married or in a civil partnership.

For married couples, both parents are considered legal parents regardless of where conception took place. This is provided you are married or in a civil partnership at the time of conception.

Your child will have 2 mothers on the birth certificate, unless the non-birth mother opts out.

For unmarried couples, only the birth mother will automatically be a legal parent. If you conceive at a licensed fertility clinic, both mothers will be legal parents. However, if you conceive at home, only the birth mother has legal rights over your child.

The birth mother will appear on the birth certificate, and there won’t be a father.

Surrogacy

Only the surrogate and their spouse if they are married have legal rights over the child. They will also appear as the birth parents on the birth certificate.

You and your partner will need to apply for a parental order to transfer parental responsibility from the surrogate to you. Once this is done, you can apply for an updated birth certificate. 

Surrogacy as a lesbian pregnancy option

If you or your partner have fertility issues, surrogacy may help you have a child. However, in the UK there are several legal risks associated with surrogacy and who has parental responsibility after birth. Image courtesy of Daniel Reche.

Who is the baby’s legal father?

In almost every situation where two women have a baby together, there is no obligation to add a father onto the birth certificate.

The only exception to this is during surrogacy. If the surrogate is married to a man, he will be the child’s legal father, unless he opts out.

Applying to become a legal parent

If you’re the non-birth mother and want to legally become one of your child’s parents, you’ll need to apply for a parental order. You can only do this if you, or your partner are genetically related to your child, and if the birth mother gives their consent.

Provided the birth mother offers their consent, the courts will rarely reject a parental order. However, they can take around 20 to 30 weeks or longer to approve.

Adoption vs Parental Orders

Lots of people confuse adoption and parental orders. You can only apply for a parental order if you or your partner are genetically related to the child. If neither of you are, you will need to adopt.

Can two women have a baby together?

Absolutely, and we hope this article can help female same sex couples to make an informed decision over the different ways to have children and your legal rights.

Every couple is different and there is no right or wrong way to start a lesbian family. Remember though that it’s not only the lesbian pregnancy options that you should consider. There are legal implications to only having one legal parent, which you’ll need to weigh up.

If you’re a lesbian couple looking to start a family and are unsure of your options, get in touch. We’ll connect you with a specialist LGBT family lawyer who can advise on your legal rights.

Looking to speak to a lawyer about lesbian pregnancy?

We’ll connect you with an LGBT family law expert to discuss your options.

Need an LGBT Lawyer on your side?

We’re here to assist. Just tell us what you need help with and we’ll call you back to arrange a meeting.

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