The ‘traditional’ family unit consists of a mother and a father, who are respectively female and male, and that heterosexual gender-conforming couple bringing a child into the world will likely do so without ever thinking that ‘the system’ is faulty. Paperwork will refer to them as ‘mother’ and ‘father’ and completing that paperwork will be easy. That is simply not the case for same-sex couples or transgender people.
A recent BBC article (https://www.bbc.co.uk/news/uk-england-devon-58071558) highlighted the issues faced by a same-sex female couple when attempting to register the birth of their son. Kate and Gemma Fox were unable to use the Devon County Council website as there were only boxes to provide the names of the mother and father. Similarly, the ‘Red Book’ – the child’s health record issued to all new parents – and their GP registration form only included space for the name of the mother and the father.
Yet same-sex couples have been able to enter into Civil Partnerships since December 2005 with the coming into force of the Civil Partnership Act 2004 and to marry since March 2014 with the Marriage (Same Sex Couples) Act 2013 and, unsurprisingly, many want to have children. Why, then, does the system still discriminate against families where the traditional concept of mother and father does not apply?
Starting a family as a same-sex couple is much less straightforward than for heterosexual couples and usually involves third-party assistance. In April 2009, the relevant sections of the Human Fertilisation and Embryology Act 2008 dealing with legal parenthood came into force. For female same-sex couples conceiving via donor sperm, these provisions have enabled the female who does not carry the child to become the second legal parent, to the exclusion of any donor father. There are important differences as to whether the second female parent is married to or in a Civil Partnership with the birth mother at the time of the conception, and whether the insemination took place in a licensed clinic or not (to read more about this, see our earlier blog here https://www.burgessmee.com/site/blog/burgess-mee-blog/considering-donor-conception-consider-taking-legal-advice)
The HFEA 2008 also extended parental orders (the transformative orders of the court following a surrogacy arrangement which transfer legal parenthood from the surrogate and her spouse, if she has one, to the intended parents) to same-sex couples. This change in the law meant that male same-sex couples could, for the first time, become legal parents of their own biological children as a family unit.
If the law enabling same-sex couples to become parents has been in place for 12 years, it begs the question why post-birth services have not caught up and ensured that when dealing with same-sex parents, they are treated in exactly the same way as heterosexual parents. Fortunately, with the advocacy of Kate and Gemma Fox, Devon County Council immediately changed its forms, while the NHS Devon Clinical Commissioning Group contacted all GP practices in Devon to ensure that their documentation was inclusive. However, without the proactive steps taken by Kate and Gemma to shine a light on these inadequacies, would anything have been done?
This failure to use inclusive language also affects trans parents. Freddy McConnell, the transgender man who gave birth to a son and sadly lost his Supreme Court case to have his name registered on his son’s birth certificate as either ‘father’ or ‘parent’ instead of ‘mother’, is now pregnant again following IVF treatment. Openly sharing his journey for a sibling on Instagram, Mr McConnell recently told how he had received a letter inviting him to get a whooping cough vaccination. Whilst addressing him as Mr McConnell, the rest of the letter was essentially a template that referred to the government’s advice for ‘pregnant women’ and ‘expectant mothers’ to get vaccinated. Mr McConnell found that letter ‘alienating’ and ‘upsetting’, but more importantly, he worried that other pregnant trans men receiving such a letter could be discouraged from getting vaccinated for fear they might not be treated respectfully. Mr McConnell wrote to his GP surgery asking for the letter to be re-sent to him as if it was in fact for him, and the hope and expectation is that this type of administrative error will be investigated and not repeated.
Gay dads and surrogacy champions, Mike and Wes Johnson-Ellis, when going through their own UK surrogacy journey were appalled to find that the NHS trust dealing with their surrogate did not have an inclusive surrogacy policy. In fact, there did not seem to be any real understanding of surrogacy at all, with staff advising that any handover of the baby from the surrogate to the intended parents would have to be done in the car park. Understandably appalled at this suggestion, Mike and Wes – who are co-founders of My Surrogacy Journey, a not-for-profit UK surrogacy agency – later worked with the Department of Health and Social Care to produce guidance for healthcare professionals. In 2019, a year after the publication of this guidance, Mike and Wes submitted a Freedom of Information request to understand which NHS Trusts had updated their policy accordingly. Fewer than 20% of NHS Trusts had adopted the guidance, so the couple gave each trust six months to create a new policy or face a full judicial review. It was important for Mike and Wes that all NHS Trusts had a fully inclusive surrogacy policy so that both the surrogates and the intended parents, gay or straight, would not have to suffer the degrading car park handover, or miss the birth of their child. Thankfully, they were successful, with all bar two NHS Trusts changing their policies. UK intended parents owe a debt of gratitude to Mike and Wes for calling out the discrimination and inadequacies and for doing something (at their own cost) to improve the situation for the LGBTQ+ community, as well as for heterosexual couples going through surrogacy.
So, whose responsibility is it to get it right? Is it always up to the LGBTQ+ parent or patient to draw these inadequacies to the attention of the authorities? Of course it isn’t. But it seems like there is a constant battle for LGBTQ+ families to be treated in the same way as their heterosexual counterparts. That is simply not good enough.
If you are an LGBTQ parent facing similar issues and would like legal assistance, please contact Natalie Sutherland, our modern family law expert on nataliesutherland@burgessmee.com.
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