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Legal Notes

The following information about Parenthood in assisted reproduction, and Adoption, is adapted by the Equality Network from articles by Caroline L S Henderson (previously at Maclay Murray & Spens LLP and now at MTM Family Law LLP)  and Peter Murrin (of the Family Law Unit at Maclay Murray & Spens LLP).


Maclay Murray & Spens LLP have also provided the Equality Network with information about parenthood and guardianship, and on the importance of parents making a will, which is available at the foot of this page.


Please note that the law in this area is complex, and these notes only give an outline. It is always a good idea to get legal advice yourself from a lawyer with experience with LGBT parenting issues.





The Equality Network is hugely grateful to Heather Walker for all her work in compiling and editing ‘LGBT Pathways to Parenthood,’ to everyone who generously shared their personal stories, and to LGBT Health and Wellbeing , LGBT Youth Scotland and Maclay Murray & Spens LLP for their support for this project.


The book would not have been possible without the support of Jane Carnall, Esther Paterson and Jules Barnes. Many thanks also to Becky Kent for setting up this web version of the book.


‘LGBT Pathways to Parenthood’ was compiled by Heather Walker in memory of Stuart Niven.

Useful contacts

LGBT people who took part in this project mentioned the following organisations.


BAAF Adoption and Fostering – Scottish Centre




Coram (adoption services)


COTS (Childlessness Overcome through Surrogacy)


Cryos International – Denmark ApS


European Sperm Bank


Fertility Friends (online forum)


Gay Dads Scotland 


Human Fertilisation and Embryology Authority


IVF Scotland


LGBT Centre for Health and Wellbeing


LGBT Youth Scotland


London Women’s clinic


Nuffield Health Glasgow Hospital


Rainbow Families


Simpson Centre for Reproductive Health, Royal Infirmary of Edinburgh


Stonewall Scotland


Sperm Donors Worldwide


Surrogacy UK


By Jo Clifford


How strange it is that the opponents of lesbian, gay, bisexual, transgender and intersexed (LGBTI) rights should so often describe themselves as defending family values. As if we didn’t belong to families, we’re not daughters, sons, sisters, brothers, cousins, aunts and uncles, parents and grandparents, too.


It is sad that the families we were brought up in so often betrayed our need and right for comfort, love, acceptance and support, and were so often instead a source of oppression and suffering.


But that doesn’t stop some of us choosing to contradict the past, and create new families that can be such a source of profound joy and liberation.


For myself, I feel so blessed and fortunate in my late partner, my daughters and my grandchild. My daughters especially taught me to value myself and showed me a way forward out of the crippling self-judgment that was a legacy from the prejudice I grew up with. Being a father and now a grandmother continues to be one of best things about my life and one of the achievements I feel most proud of.


But all too often the stories of LGBTI parents are not fully told. That’s one of the many achievements of this new resource from the Equality Network: that it gives space and respect to so many beautiful stories of courage, of liberation, and of love.


Jo Clifford

Playwright, performer, professor, parent

Parenthood in Assisted Reproduction

This web page contains information about the legal definition of parenthood, about donor insemination using a clinic or “do-it-yourself” approach, pre and post 2009 law for civil partners, surrogacy and parental orders.


The information is adapted by the Equality Network from articles by Caroline L S Henderson, previously solicitor in the Family Law Unit at Maclay Murray & Spens LLP and now at MTM Family Law LLP.



Legal definition

The legal definition of parenthood in circumstances where a child is born by assisted reproduction, including donor insemination, is complicated.


The legal definition of the mother of a child is the one who gives birth to the child, whether the child is conceived naturally or following assisted reproduction. It does not matter whether she has any genetic connection with the child – in law she is regarded as the mother “for all legal purposes” at the time of the child’s birth.


The legal status of ‘mother’ will only be lost through adoption (or in the case of a surrogate mother, through the making of a parental order, detailed below).


The child’s other parent in a legal sense, whether male or female, will depend on the genetic material used in the assisted reproduction, but more importantly, will depend on the marital or civil partnership status of the mother.


The main determining factor of who a child’s other legal parent is at the time of the child’s birth is whether or not the mother is married or in a civil partnership. If she is, then it is her husband or civil partner who will legally be presumed to be the child’s father or other parent at the time of the child’s birth, irrespective of whether he or she is biologically connected to the child or not.


This means that if a woman gives birth to a child conceived by donor insemination, then if she was in a civil partnership at the time of conception, she and her civil partner are the child’s legal parents. The sperm donor is not a legal parent of the child.


If a woman who is not in a civil partnership gives birth to a child conceived by donor insemination, the situation is more complex. The other legal parent depends on whether the donor insemination was done through a licensed fertility clinic, or was ‘do-it-yourself’.


If a licensed fertility clinic is used, the mother can nominate another person to be the child’s other legal parent – typically this would be her partner.


If the donor insemination was not done through a clinic, but was do-it-yourself, then if the mother is not in a civil partnership, it is the sperm donor who is the child’s other legal parent, not the mother’s partner.


Donor insemination

The legal position of donor insemination is complicated. Whether or not your donor has any legal rights to a child conceived by donor insemination can depend on a number of things, including whether the sperm is used within the regulatory framework of the 2008 legislation or not (and that can include whether or not the donor is known to the woman), and how the insemination took place. But most importantly it depends on the legal status of the mother at the time of conception.



If a woman gives birth to a child conceived artificially by donor insemination through a licensed clinic in the UK then the sperm donor is not a legal parent of the child. The child will have one legal parent at the time of birth, that is, the birth mother.


If the option of a licensed fertility clinic is used, a single lesbian mother can nominate another person to be the child’s other legal parent. Typically, this would be her partner.


If however the woman who gives birth is married or in a civil partnership at the time of artificial insemination through a clinic, then her husband or civil partner will automatically be regarded as the child’s father or other parent in law (provided they have consented to the treatment). In these circumstances a child will have two legal parents at birth.


Anonymity of the sperm bank donor (at the time of conception, but only insofar as the legislation provides) ensures that if the donor insemination is carried out at a licensed fertility clinic then the donor will not acquire legal rights to any child born as a result of this method of conception and will not be regarded as a legal parent to the child.


If a woman gives birth to a child conceived artificially by insemination from a known donor through a clinic then the most important factor in determining legal parenthood is the marital or partnership status of the recipient of the donor’s sperm.


If the woman is single, the donor may still be regarded as the legal father even if he has signed donor consent forms. The known donor can be named on the birth certificate.


If the birth is registered jointly with the donor, he will automatically acquire parental responsibilities and rights in relation to the child. He will be relinquishing any treatment in law of him as a licensed sperm donor and will have identical rights and responsibilities to the child as that of the mother.


“Do it yourself” donor insemination

A sperm donor who donates sperm outwith the regulatory framework of the 2008 Act (not through a licensed clinic in the UK) is the legal father of any child born as a result of artificial insemination. This is the case if the woman is single, even if she is in a relationship.


If this is not the intention of the parties then conception should be undertaken at a UK licensed clinic and the relevant parenthood election forms should be completed.



The partner (rather than civil partner) of a lesbian conceiving at home would have no legal rights to a child born by these means and would require to apply for parental responsibilities and rights as a “relevant person” in terms of the Children (Scotland) Act 1995 or consider adoption of the child.


Pre and Post 2009 law for civil partners

The law for donor insemination affecting civil partners changed on 6th April 2009. If a child was conceived after 6 April 2009 in cases where the woman is married or in a civil partnership and her husband or civil partner has consented to the treatment, it would be the husband or civil partner who would be regarded as the second legal parent. They can be named on the birth certificate. The insemination must be by way of artificial means, either through a licensed clinic or “do it yourself”.


If the child was conceived through “do it yourself” insemination before 6 April 2009 the civil partner has no automatic recognition as a legal parent. She would be in the same legal position as the partner of a non civil-partnered lesbian and would have the options referred to above.


Finally, it is important to note that any person who is involved in parenting a child may apply to the court as “a relevant person” to be granted at least some legal parental responsibilities and rights, for example the right to have contact with the child. The court will only grant this where it thinks such an order would be in the child’s best interests and that it is necessary for such an order to be made.


There have been cases where a sperm donor who was not named on the birth certificate has later been granted parental responsibilities and rights by the court after he had played a role in looking after the child. The court can grant such an order even if the mother and her partner oppose it.


In such circumstances parties may wish to consider the legalities of such an arrangement in advance by considering a Preconception Agreement. This can limit any legal responsibilities a donor may have or, conversely, a Co-parenting Agreement can ensure the donor’s status in respect of the child he intends to father.


Surrogacy and parental orders

Surrogacy is where a woman carries and gives birth to a child on behalf of another couple, with the intention that parenthood will be transferred to that other couple shortly after birth. This transfer is done by a ‘parental order’.


The Human Fertilisation and Embryology Act 1990 (‘the 1990 Act’) introduced the concept of a parental order. A parental order is the legal mechanism for transferring the status of ‘mother’ from the surrogate to the commissioning parents. The 1990 Act only provided for cases in which the commissioning couple were married.


Since 6 April 2010 under the Human Fertilisation and Embryology Act 2008, the category of people who can apply for a parental order was extended so that civil partners, and mixed-sex or same-sex couples living as partners in an enduring family relationship, as well as married couples, can apply for parental orders.

Before a parental order can be made various conditions require to be fulfilled. Parental orders will only be made where:


  1. The application is made by a married couple, civil partners, or two persons who are living as partners in an enduring family relationship and are not within prohibited degrees of relationship in relation to each other (that means, not closely related, eg brother or sister, parent and child, etc);


  1. The child has been carried by a woman other than one of the applicants as a result of the placing in her of an embryo or sperm and eggs, or through artificial insemination;


  1. The egg or sperm of at least one of the applicants was used to bring about the creation of the embryo;


  1. An application for a parental order is made within six months of the birth of the child;


  1. The child’s home is with the applicants at the time of the application and at the time the order is made;


  1. Either or both of the applicants are domiciled in the United Kingdom, Channel Islands or Isle of Man at the time of application and at the time the order is made;


  1. Both the applicants have attained the age of 18 by the time the order is made; and


  1. The woman who carried the child and any other person who is a parent of the child have freely, and with full understanding of what is involved agreed unconditionally to the making of the order. A mother cannot give agreement to a parental order less than six weeks after the birth of the child.


Other rules about surrogacy

The Surrogacy Arrangements Act 1985 prohibits the entering into or negotiating of a surrogacy arrangement on a commercial basis. In other words, the surrogate mother cannot be paid a fee for being a surrogate, although all her expenses related to the pregnancy can be paid by the commissioning couple.


It is criminal offence to negotiate a surrogacy arrangement on a commercial basis. It is not an offence for somebody to enter into an arrangement, but it is an offence for a third party brokering a surrogacy arrangement and to profit by helping someone else make a surrogacy arrangement.


Non profit making organisations such as COTS are legal so long as they do not charge for their services, although they may charge a membership fee. It is also a criminal offence in the UK to advertise that you are a third party willing to facilitate the making of a surrogacy arrangement, or that you are looking for a surrogate mother or are willing to act as a surrogate mother.


The Act also states that surrogacy agreements entered into in this country are unenforceable. This means that the surrogate mother always has the right to change her mind about the arrangement, and keep the child, up to the point where she agrees to the parental order, which will be at least six weeks after the birth.


If the surrogacy arrangement fails and the surrogate elects not to hand the child over following birth, an application to court (by either party) may be made to determine with whom the child should reside and what would be in the child’s best interests: would it be in the best interest of the child to reside with the surrogate or with the commissioning parents. Although unenforceable in the UK a surrogacy agreement can demonstrate the clear intention of the parties at the time the surrogacy arrangement was entered into which may be of relevance in determining a later dispute.


It may be possible to enter into a surrogacy arrangement in a country outwith the UK. However, there have been numerous cases which highlight the difficulties of dealing with the laws of two different countries, which may not be compatible. There are many countries in which a surrogacy arrangement is enforceable domestically, unlike in the UK. There are also countries where surrogacy agreements are illegal. This can effectively mean that a child may be regarded as ‘stateless’ and have no rights in either country.


There are very complex rules about bringing a surrogate child into the UK. The child will not automatically be a British citizen and in some cases parents may have to apply to the Secretary of State for special entry clearance – a time consuming process preventing the return of the new family unit back to the UK to start their new family life together. Specialist advice should be sought at the earliest opportunity.





The following information is adapted by the Equality Network from articles by Peter Murrin, solicitor in the Family Law Unit at Maclay Murray & Spens LLP



On 31 July 2011, 16,171 children in Scotland were in the care of local authorities. The largest grouping (37 per cent) was that of children between the ages of 5 and 11 years old and the second largest was between the ages of 12 and 15 years old (32 per cent).


In the year 2009-10 only 466 adoption orders were granted. Of that number 103 were children between the ages 5 and 9, and 7 were between the ages 10 and 14. The majority of the adoptions were by male / female couples, with only 12 being by same-sex couples (8 female / female and 4 male / male).


Adoption and fostering represents an avenue for those couples who cannot have their own, to bring children into their lives and to give them a home as well as love, care and support. More same-sex couples now consider adoption for these reasons, and as more adoption agencies actively promote the availability of adoption to same-sex families, it is worth reviewing what is required to adopt.


What is adoption?

The current adoption law in Scotland is found in the Adoption and Children (Scotland) Act 2007 (the “2007 Act”).


Adoption is the legal process through which a new and permanent family life can be provided to a child who cannot be cared for by their birth parents or biological family.


A court order transfers parental responsibilities and rights (the responsibilities to the child and rights of the parent in respect of the child) from the birth parents to the adoptive parents. What this means is that the person adopted is thereafter treated as the child of the adoptive parents in the eyes of the law.


When deciding whether to make an adoption order a court must have regard to the whole circumstances of the case but specifically shall regard the safeguarding and promotion of the welfare of the child as its paramount consideration. Other considerations will include (but will not be limited to) the child’s views (where appropriate, having regard to age and maturity), religious persuasion, racial origin and cultural and linguistic background as well as the value of the stable family unit in the child’s development. In essence, everything that is relevant will be taken into consideration.


The process

There is no shortage of adoption agencies in Scotland and in most cases the process begins with a simple enquiry. Many adoption agencies are charities such as Barnardo’s or The Scottish Adoption Association (Edinburgh and the Lothians) but most operate on behalf of local authorities. Glasgow City Council’s agency is Families for Children while Dundee City Council’s Change Their Lives provides good advice and assistance for applicants in that region.


Exact details can vary slightly between agencies so individual experiences may differ slightly from what follows but, substantively, the process is uniform. Following the applicant’s enquiry there will be a meeting with the agency. The purpose of this is to exchange information and will hopefully enable an application which will be assessed by a social worker.


The assessment process will include visits to the applicant’s home by the social worker (usually six times), medical history checks, a medical examination and a background check. Three character references are also usually taken. It is generally expected that the process will take a minimum of six months following which the social worker will prepare a Prospective Adopters Report with the applicants. During the period, applicants will often be invited to attend parenting classes and workshops designed to prepare the adoptive parents for the step they are about to take and to familiarise them with common problems which may arise as a result of the change that will take place in their lives.


The applicant will then be invited to attend an adoption panel meeting which will recommend either to approve the applicant or not based on the report and the applicant’s circumstances.


It is worth pointing out that it can take time to be matched with a suitable child – couples will often have preferences in terms of age ranges and the agency will have a duty to ensure that the match of parent to child is suitable.


This can be a frustrating period for the applicant(s) having spent several months in the assessment process. Once the child is found by the agency, a further meeting is held between the agency and the applicants and a report is made by the agency to the adoption panel which will, in turn, make its recommendation on whether the placement should be made.


Following on from that, a series of meetings between the child and the now prospective adopters will usually occur (often in the company of the child’s foster carers) to allow the child and the prospective adopters to get to know one another. If all goes well, the child will then move in with prospective adopters. Once that living arrangement has subsisted for a number of weeks (10 weeks is quoted by some agencies), the prospective adopters may apply to the court for the adoption order in respect of the child. It should be kept in mind that a child’s parent or guardian with parental rights and responsibilities can contest the adoption up to the point where an order is applied for. Nevertheless, once an adoption order is granted by the court, the child legally becomes a part of their adoptive family.


There is no doubting that the process can seem arduous and even frustratingly formal but the welfare of the child is paramount and the purpose is to create a permanent family arrangement. The benefits to the prospective parent and child are beyond measure.


Who can adopt?

Sexual orientation and gender identity are not barriers to adoption but are circumstances which will be taken into account in the ‘whole circumstances’ of the case. The 2007 Act allows for single people, married couples, couples in a civil partnership and cohabiting couples (mixed-sex or same-sex) to adopt. With high profile same-sex couples adopting and raising children, social attitudes surrounding what does and what should constitute a family unit are undoubtedly changing.


The minimum age for applicants is 21 and there is no upper age limit. However, agencies and the adoption panel will take this into account, alongside health and well-being, as part of the assessment process. Being disabled, overweight or having an illness do not preclude an applicant and agencies will often suggest that an applicant discusses the demands and expectations of adoption with an adopter with similar circumstances (Adoption UK’s PAL service is one facility which has a particular focus on this area).


Finance is obviously important for many families. An applicant does not need to be wealthy or a homeowner to adopt. However, it will obviously be necessary to show how a child would be supported going forward. An applicant will be asked to show that there is adequate space and means to care for the child although in some cases assistance from a local authority will be available.


Adoption leave

In terms of leave and payment, the rights in respect of adoption mirror those of maternity. An adopter (or one member of a couple who adopt jointly) may, if they meet the eligibility criteria, take up to 52 weeks adoption leave (made up of 26 weeks ordinary leave and 26 weeks additional leave). Statutory adoption pay will also be available for a maximum of 39 weeks and is currently (2013-14) paid at the rate of £136.78 per week (although some employers may offer better as part of the terms of an individual’s contract). An adopter will be eligible for said leave and pay where they are newly matched for adoption through a recognised adoption agency and where they have been in continuous employment, with their employer, for a period of 26 weeks (ending with the week in which they are notified of the match).


The other member of a couple who are adopting jointly may be eligible for paternity leave or additional paternity leave – despite the terminology, the leave is available to same-sex female couples as well as men – if they meet the required criteria.


Here you can search our ‘LGBT Pathways to Parenthood’ web pages by subject.


Brackets () indicate that this refers to the speaker’s partner.



Artificial insemination/assisted conception (IUI / IVF)


Banking sperm before transition




Gay men


Gay men providing sperm for friends / co-parenting








LGBT parent through heterosexual intercourse




Step parent


Straight/LGBT co-parenting




Transgender men


Transgender women


Using a known sperm donor


Using a sperm donor/sperm bank




Printed resources

The following printed resources were mentioned by LGBT people during the course of interviews or in survey responses:



LGBT Pathways to Parenthood

Front coverIn 2012-2013, lesbian, gay, bisexual and transgender people shared with us their thoughts and experiences of becoming parents. Those stories were compiled and edited by Heather Walker into a book, ‘LGBT Pathways to Parenthood’, published by the Equality Network.

The book is available here in print from amazon, at cost price of £11.16 with free delivery.

A kindle edition is available here for 77p .

There is a free pdf of the print edition available here.

The book contents are also available in easily browsable format, through the following links:


We are grateful to Maclay Murray and Spens LLP for providing additional material on the importance of making a will: