LGBT History Month: Reflections on Changing Frameworks for LGBT+ Families (Part two)

Civil Partnership and Marriage, Surrogacy, Alternative Parenting Structures and the Gender Recognition Act

In part one I looked at how the advent of IVF, adoption law, and the introduction and repeal of Section 28 have shaped LGBT+ families in the last few decades. In this part, I will look at one of the biggest legal changes in LGBT+ rights and areas where the law has some catching up to do.

Civil partnership and marriage

Marriage has for a long time provided a structure for legal parentage over and above a biological link. For example, if a woman in the early 20th Century committed adultery her child was presumed to be that of her husband’s – a presumption that had to be rebutted – which before DNA testing could be tricky. Much of the legal framework around LGBT+ parents still privileges the marital structure (or quasi-marital structure of civil partnerships). An example of this is the female civil partner or wife of a woman who gives birth by assisted reproduction who will automatically be ‘the second female parent’ of the child. This is not the case for two women in a relationship who are not married or in a civil partnership who would need to apply for parental orders. Given that increasing numbers of children are born outside marriage, this reliance on marriage or civil partnership as a parenting structure does not reflect the reality for many parents, straight or gay.

This is not to denigrate or understate the huge step forward that the Marriage (Same Sex Couples) Act 2013 made. It can be easy to forget what a momentous, seemingly unachievable goal this change was for LGBT+ campaigners; it wasn’t until 1999 that a same-sex partner was even recognised as ‘family’ by the House of Lords in Ghaidan v Godin-Mendoza in relation to inherited tenancies with this legal recognition proving to be an important step on the way towards marriage equality.

Surrogacy

Due to the desire to protect the gestational constituent of motherhood, the route to legal parenthood for parents who use a surrogate is different to that of a parent who herself conceives through IVF. This means that the journey to legal parenthood is often more complicated for, say, a gay male couple through surrogacy than a lesbian couple conceiving via IVF. Surrogacy is not currently regulated in the UK and some parents who choose this route prefer to make international surrogacy arrangements. The coronavirus pandemic has thrown into sharp relief the problems caused by this system with parents waiting months to see their newly born children this year due to travel restrictions and leaving surrogates with babies they did not intend to look after. The UK’s approach to surrogacy results in unregulated and informal arrangements which can end up in complicated situations for both the intended parents who may not have the legal right to make medical decisions and for a surrogate if the intended parents change their minds. After many calls for reform, The Law Commission is currently conducting a review into surrogacy in the UK. The public consultation has closed and a final report is expected in early 2022.

Alternative parenting structures

The law does not allow for a child to have more than two parents. Parental provision therefore falls short for many LGBT+ people who do not follow the heteronormative paradigm of the nuclear family: for example, the lesbian couple who co-parent with a known sperm donor and his partner. Family structures with fewer or more than two parents have always been with us due to death, remarriage and step-parents, so it will be interesting to see if the law will develop to allow a child to have more than two legal parents in the future.

The Gender Recognition Act

Much legislation is gendered when it comes to parenting, such as the provision for a ‘second female parent’ in the HFEA 2008. This has been highlighted by the case of Freddy McConnell, a trans man who paused transitioning in order to conceive and give birth to his child. Despite being recognised as legally male in every other area of his life, Freddy is registered on his child’s birth certificate as its mother and has not been allowed to change this to ‘father’ or even the gender-neutral ‘parent’. This is an example of how current legislation does not reflect the needs of trans or non-binary parents. The government has recently overlooked a chance to update 2004’s Gender Recognition Act, closing a two year consultation period with little change. The British Medical Association is among organisations calling for reform for trans people to be able to identify as a mother, father or parent, rather than having a label imposed upon them that might be at odds with their gender identity.

There are many other legal changes which have affected LGBT+ families over this period including the introduction of the Human Rights Act 1998 and the Equality Acts of 2006 and 2010. LGBT+ History Month is a welcome time to reflect on how far we have come since 1988 and the ‘pretended family relationship’ of Thatcher’s Section 28. But it is also a time to remind ourselves to keep pushing for change in order for all LGBT+ people to be equal as parents and have a place in a family, that fundamental unit which makes up the other thing Thatcher famously didn’t believe in: society.

Some further reading, listening and watching

• Dustin Lance-Black explores attitudes to surrogacy and his own journey to having a child in his podcast Surrogacy: A Family Frontier
• Actor Charlie Condou’s column The Three of Us documents parenting with his husband and best friend
• Fertility law expert Natalie Gamble’s 2009 article considers the HFEA 1990’s provision for a clinician to consider the child’s ‘need for a father’ and the debate in Parliament around its amendment
• Five Facts about LGBT Adoption
• Seahorse: The Dad Who Gave Birth is a documentary about one trans man’s quest to start his own family