‘Legal Parentage' and ‘Parental Responsibility’: What is a parent?

If somebody asked you, what is a parent, would you find it easy to answer?

Most would be probably say that a parent is someone’s mother or father, or someone who has looked after a child in that manner. For a family lawyer, the question is somewhat more complicated.

In a world that has an increasing number of different types of families, different ways of conceiving children, and different approaches to parenting, when a family lawyer is asked that question, their answer is probably going to be along the lines of ‘well, it depends!’.

Two key terms to be aware of are ‘parental responsibility’ and ‘legal parentage’ – many people do not know the key differences between these two concepts.

Legal Parenthood

Legal parenthood governs factors such as financial rights and responsibilities over a child (including inheritance rights), as well deciding who can be registered on a birth certificate. Where conception has occurred naturally, the biological parents will always be the child’s legal parents. Where IVF treatment has taken place, the situation is a little more complicated, and is entirely governed by the Human Fertilisation and Embryology Act 2008 (HFEA 2008):

1. The birth mother will always be the legal mother of a child, even if is not her eggs that have been used in the process.
2. If the birth mother is married or in a civil partnership, and it cannot be shown that their spouse/civil partner has not consented to the treatment, the spouse/civil partner will be the child’s legal parent.
3. If the intended parents are not married, the intended father or second female parent will have to make sure that they have satisfied the ‘agreed fatherhood’ or ‘agreed female parenthood’ conditions before the artificial insemination takes place. These are outlined in Section 37 and Section 44 of HFEA 2008 accordingly.
4. It is important to note that point 3 above is only relevant to treatment that has taken place after 6 April 2009, and in a UK licenced clinic. In the event treatment has not taken place in a UK licenced clinic, a number of risks can arise, such as the sperm donor being the legal father of the child, or the intended second legal parent having no rights. This is why it is important to obtain full legal advice before embarking on treatment.

Parental Responsibility

Parental Responsibility relates to a parent’s duties and responsibilities for their child, on a day to day basis. There are different ways to obtain Parental Responsibility over a child:

1. The birth mother will always automatically obtain Parental Responsibility for the child on birth, regardless of whether she is the biological mother.
2. The spouse or civil partner of the birth mother will automatically obtain Parental Responsibility (provided they are the legal parent of the child).
3. If the parents are unmarried, the father or second female parent will obtain Parental Responsibility if they are registered on the birth certificate following the birth.
4. Any other person who is party to a Parental Responsibility Order/Agreement (this can be grandparents, step parents, etc).

In the event the birth mother does not comply with point 7 above following the birth of a child, and fails to register the child’s birth with the second parent’s name on the birth certificate, it is likely the following steps will have to be followed:

1. If the legal parentage of a second parent is in dispute, they may have to apply to the courts for a Declaration of Parentage. However, it is important to note that although this will add a second parent’s name to a birth certificate, it will only prove their status as a legal parent, it will not give them parental responsibility. In order to obtain parental responsibility, they would have to apply to the courts for a parental responsibility order.
2. Where the legal status of a parent is not in dispute, but the birth mother is refusing to register the second parent’s name on the birth certificate, the second parent can apply to the courts for a Parental Responsibility Order. This will then allow the second parent to unilaterally apply to the General Registry to re-register the child’s birth with their name listed as the father or second female parent.

P v Q & Ors [2024] EWFC 85 (B)

There has been some recent case law addressing the issue of a ‘legal parent’, such as P v Q & Ors [2024] EWFC 85 (B). In this case, a married, same-sex female couple (‘P’ – intended biological mother and ‘Q’ – intended second female parent) attempted IVF with a sperm donor ‘F’, in 2016.

After two failed rounds of treatment, P and F had sexual intercourse on three occasions in attempt to conceive naturally, without Q’s knowledge. P became pregnant, although it was unclear whether this was a result of natural insemination or IVF treatment.

On the birth of the child, P was registered as the child’s mother, and Q as the second female parent, because they were married. The couple subsequently divorced, and P applied to the court for a declaration of parentage stating that F was the father of the child and that her former wife was not the second female parent. P made the application on the basis that Q had not properly acquired parental status as per the requirements of HFEA 2008 (point 2 above), because she had not consented to natural insemination.

The Judge held that the starting point in common law is that P and F were the child’s mother and father. The court was unable to make a finding that the child was conceived via IVF, therefore the court must rely on the common law position, and not HFEA 2008, to establish legal parentage. The Judgment concluded by stating that this was not the place to be discussing which party has or should have Parental Responsibility – this is a separate issue that relates solely to the welfare of the child, and would be considered in another hearing.

Conclusion

This summary does not cover all the scenarios where the definition of a ‘parent’ is relevant. Legal Parentage is an important concept when using a surrogate – this is an evolving area of law in the UK where Parental Orders are used.

Legal Parentage is also a live issue for trans people. Currently, transgender men who give birth to their children have to register as the ‘mothers’ of their children. The situation for non-birthing transgender parents is also unclear, with the Register General providing guidance that states a Gender Recognition Certificate does not affect their status as a mother, second female parent or father, and they must be recorded in line with their birth sex.

This issue gained publicity in the case of Freddy McConnell, a transgender man who gave birth in 2018 following fertility treatment. He lost his legal battle to be registered as his child’s father, despite the fact he is legally male and holds a Gender Recognition Certificate. This case highlights that legal parentage is an ongoing relevant issue, and the legal framework may need considerable modifications to be in line with the realities of modern-day life and parenting.

As discussed at the beginning of this article, when a family lawyer is asked ‘what is a parent?’, their answer is probably going to be along the lines of ‘well, it depends!’.  Regardless of your situation, it is important to obtain legal advice on these issues. If conceiving children via IVF, the issues that arise can be complicated, and it is always best for the children and the whole family to have clarity on who holds legal parentage, and who has parental responsibility.

If you have an enquiry regarding legal parenthood or parental responsibility, please call our Family Law team today on 0113 227 9285.