Pride Month and Family Law: Protecting LGBT+ Parents and Children

This article was written by our Family Team Legal Assistant, Sophie Jones.

Family law has changed dramatically over the last few decades, and Pride Month is a timely moment to reflect on the progress made for LGBTQ+ parents and their children. Today, the starting point in any decision about children is simple: the child’s welfare comes first. Under the Children Act 1989, when a court is deciding questions about a child’s future and upbringing, the child’s welfare is the court’s paramount consideration.

Why parental responsibility matters

Parental responsibility (“PR”) is the legal authority to make (or be involved in) the big decisions in a child’s life such as their education, medical treatment and travel. The Children Act 1989 defines PR as the rights, duties, powers, responsibilities and authority a person has in relation to a child.

Assisted conception: what the law says about the legal parentage at birth

In England and Wales when a child is conceived through fertility treatment, legal parenthood is usually governed by the Human Fertilisation and Embryology Act 2008 (“HFEA 2008”). The birth parent (the person who carries and gives birth) is the child’s legal mother.

• If you are married or in a civil partnership before treatment starts, your spouse/civil partner will usually be the child’s second legal parent automatically unless they did not consent to the treatment.
•  If you are not married or in a civil partnership, the key issue is consent. Where treatment takes place at a licensed UK clinic, both partners normally need to complete the clinic’s parenthood consent forms before treatment so that the non-birth parent is recognised as a legal parent. The Human Fertilisation and Embryology Authority (HFEA) stresses how important it is to get the consent paperwork right.

Surrogacy : why a parental order is crucial

Surrogacy can be a positive route to parenthood for some families, but the legal position in the UK often surprises people. Even where the surrogate has no genetic connection to the baby, the person who gives birth is still treated as the legal mother at birth.

In addition, surrogacy agreements are not legally enforceable in the UK, and commercial surrogacy (i.e. paying for the surrogate to have the baby) is restricted, meaning it is vital to take advice early and document expectations carefully.

• Parental orders are the main way legal parenthood transfers from the surrogate to the intended parent(s).
• The court will expect the surrogate’s free, unconditional consent to have been obtained (given after the birth) and will always ask what is in the child’s welfare as the guiding principle.
• Government guidance describes the process as a pathway from matching, pregnancy and birth through to the parental order application.
• There can be a vast difference in surrogacy provisions for overseas arrangements too and all of this can cost a lot of money to put in place.

Adoption: equal access under the law

The Adoption and Children Act 2002 opened the door for unmarried and same-sex couples to apply to adopt in England and Wales. Adoption decisions are always made with the child’s welfare at their heart, and the proposed parents’ sexual orientation or gender identity should not be a barrier where those adopters can meet a child’s needs and welfare.

Trans parents and legal recognition: where the law is (and isn’t) keeping up

For trans parents, the law can still feel out of step with lived experience. In a 2020 decision, the Court of Appeal confirmed that a trans man who gives birth must currently be registered as the child’s “mother” under the UK’s birth registration framework, even though he is legally male. The court recognised the wider policy issues, and many consider reform is needed to ensure legal recognition better reflects modern families.

As is often the case, the decisions coming out of the higher courts make clear suggestions for where the law needs to change, even where they cannot change how the law is currently expressed or must be applied.

When relationships end : child arrangements and the court’s focus

Separation is hard for any family. Where parents cannot agree, the family court can make child arrangements orders setting out who a child lives with and spends time with or going further as to determine where they go to school, which country they live in or which medical treatment they do or do not receive. The court’s lens stays firmly on the child’s welfare considering things like the child’s needs, stability, and the likely impact of change (Also known as ‘The Welfare Checklist’ governed by the Children Act 1989).

• Check who has legal parenthood and PR—especially if conception was through assisted reproduction or surrogacy as it isn’t always just who is named on the birth certificate.
• Gather key documents (birth certificate, clinic consent forms, any Parental Order or adoption papers).
• Consider early negotiation or mediation where safe and appropriate, to keep decisions child-focused and directly in the hands of the people in the child’s life.
• Take advice early if a non-biological parent is not yet legally recognised or a parent is named but not necessarily the biological parent—there may be steps available to secure the child’s relationship with them through the court process.

Pride Month: celebrating progress

Pride Month celebrates visibility, family and community and it also highlights how far the law has come. Same-sex couples can marry, adopt and form legally recognised families, but some areas still create uncertainty in practice, particularly around surrogacy processes and trans parental recognition. If you are growing your family (or perhaps restructuring it after separation), getting the legal foundations established can provide the child with a safe, stable and legally accurate future.

The law in England and Wales is clear on one point: in any case about children, their welfare is the priority. The challenge for many LGBT+ families is ensuring the legal paperwork, parenthood, PR and court orders matches the reality of how your family lives and cares for your child. With the right advice at the right time, families can avoid uncertainty and focus on what matters most: safe, stable and loving parenting.

If you would like to talk through your options whether you are planning fertility treatment, entering a surrogacy arrangement, considering adoption, or navigating child arrangements after separation, specialist family law advice can help you move forward with confidence.