It's Mother's Day, But Am I The Mother?


The Rights To Your Child In A Same Sex Couple

With Mother's Day approaching you may well be considering the legal relationship you have with your child. Many female same sex couples choose to use donor sperm so that one can carry the child and also be the biological mother.
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This can leave the non-biological mother questioning their rights to the child.

Should I Worry About This?

Agata Osinska, who works in our Wimbledon office has some experience with this type of case:

"Usually, people only begin to think about the rights they have to a child when problems between couples begin. By this time you may come to realise that you have raised this child for many years, or even from when the child was born, but you have little to prove this".

"Even though the child is not biologically linked to you, you may feel that in all other respects the child is your own. The thought of not being able to see this child anymore can be devastating."

It's important to consider your relationship with the child before any potential problems could happen in the relationship with your partner. This could save you a huge amount of worry and conflict should you need to consider your rights to see the child in the future.

What Are My Rights?

The birth mother is always the legal mother, even if conceived with another woman's egg.
  • The birth mother always has Parental Responsibility
  • If the birth mother was in a civil partnership or married to another woman, the second woman is also treated as a parent of the child
  • If that child was conceived by way of assisted conception after April 6 2009, then the second woman will acquire Parental Responsibility
Where you are not married, or in a civil partnership, if the procedure was carried out in a licensed clinic with written consent, the cohabitant is considered to be a parent. To acquire Parental Responsibility you would need to be on the birth certificate.

Surrogacy is more complicated and requires applying for a Parental Order with the consent of the birth parents.

What is Parental Responsibility?

Parental responsibility is defined in law as the rights, duties, powers, responsibilities and authority which a parent of a child has in relation to the child and their property. Those who have parental responsibility have the right to make decisions about the upbringing and care of the child. This includes important roles such as:
  • Providing a home for the child
  • Ensuring their protection and maintenance
  • Providing education for the child
  • Responsibility for the child's medical treatment
  • Looking after the child's property

I Don't Have Parental Responsibility, What Can I Do?

Agata recommends that, "A good place to start is by speaking to your partner about any concerns you may have. Hopefully your partner will understand and agree to take legal advice to rectify the situation if possible."

What if this doesn't happen, you separate, and your partner won't allow you to see the child?

You could be left with no contact, and no paperwork to show that you were actually a parent to the child. Perhaps an informal agreement for contact is reached, but is rarely followed?

In this situation it's important to take legal advice as this area is very complicated and your options can vary depending on your situation. You may be able to apply for a Child Arrangement Order and/or a Parental Responsibility Order.

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