Parenthood after donor conception: lesbian non-birth mothers

new born baby sleeping Since 6 April 2009, UK law has protected lesbian mothers conceiving together.  Where the rules apply, the non-birth mother is her child's other legal parent and has the same legal status as a heterosexual father.

Married couples and civil partners
A non-birth mother who is married to or in a civil partnership with the birth mother at the time of conception is automatically her child's other legal parent.  The rules apply to conceptions after 6 April 2009 which take place through IVF or artificial insemination, whether at home or at a clinic in the UK or overseas.  Like a married father, the non-birth mother is named on the child's UK birth certificate and automatically has parental responsibility, giving her the authority to make decisions about her child's care. 

The law applies unless it can be 'shown' that the non-birth mother did not consent to the conception, something which must be proved as a matter of fact.  If the couple are separated and/or the birth mother is conceiving as a solo mother or with a new partner, it may be necessary to collect evidence to 'show' that her wife/civil partner does not consent.

Lesbian couples who are not married or in a civil partnership
A non-birth mother can also be treated as the other legal parent if she and her partner conceive at a licensed clinic in the UK after 6 April 2009.  Both parents must complete and sign HFEA Forms WP and PP to nominate the non-birth mother as the other parent, before conception and after receiving counselling and proper information about the forms.  It is important to follow the procedure carefully.  In Re E and F (2013), the High Court ruled that a lesbian non-birth mother was not a legal parent because the wrong consent forms were signed.  In a case known as the 'Alphabet case' (2015), the High Court heard a number of applications for parentage together following an audit which discovered that many patients had not completed the forms or not done so correctly. Fortunately, on the facts of nearly all the cases the President of the Family Division was able to find a way of 'correcting' the mistakes.  However, the case highlighted the importance of following the procedure carefully.

Like an unmarried father, a non-birth mother who is a legal parent is financially responsible for the child.  However, she will only have parental responsibility (the right to make and be involved in decisions about her child's care) if she is registered on the birth certificate (which requires the consent of both partners) or if she takes steps after the birth to acquire parental responsibility as a legal parent.

Non-birth mothers who are not legal parents
Non-birth mothers who fall outside these rules are not legal parents from birth.  This applies, for example, to non-birth mothers with children conceived before 6 April 2009, and to unmarried non-birth mothers who conceive through home insemination or at a clinic overseas.  In these cases the non-birth mother can take steps after the birth to secure parental rights.


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