LGBT+ Adoption & Fostering: What are the options?

LGBT+ Adoption and Fostering Week is marked annually in March.

Over the years, various changes in the law have seen drastic improvements in providing more legal options than before to those in the LGBT community who wish to begin their journey to starting a family.

Adoption

The Adoption and Children (Scotland) Act 2007 states quite clearly that any “relevant couple” may apply to adopt a child, as well as single persons.  A “relevant couple” are those whether in a marriage, or civil partnership or otherwise an “enduring family relationship”, regardless of their sexual orientation. Therefore, generally speaking anyone over the age of 21 can apply to adopt, either on their own or with their partner, civil partner or spouse. If you are interested in adoption then you will require to contact a recognised adoption agency (such as your local authority, Scottish Adoption or Barnardo’s) who will undertake the relevant checks and offer support through the next steps.

If you are looking to adopt a child who is a relative or a step-child then you do not need to undergo the same pre-adoption processes and checks with an adoption agency, but you do still require to give notice to your local authority of your intention to adopt. They will then investigate your situation and meet with you in order to prepare a report as part of your court application.

Once successfully matched with a child or children, a legal petition seeking a formal request for an adoption order can be lodged with the appropriate court after 13 weeks of the child or children living with their adoptive parent or parents. How long the court process takes depends on whether there is an opposition from the birth parents and therefore whether further court procedure is required. A court reporter is appointed to visit you and complete a short report to the court with their recommendation to the sheriff on whether this can be granted, and also confirmation for any children over 12 years old that they have consented to the adoption.

It is becoming increasingly common for adoptive parents to look to adopt children from overseas. The process is necessarily complex to safeguard the needs of the child. The rules can vary depending on where the child is being adopted from, where you are currently living and whether the adopter has been assessed as eligible and suitable to adopt from overseas by an adoption agency in the UK. Whilst the sexuality of the prospective adopter or adopters is not a factor to be considered in UK based adoptions, it may still be a factor considered by an overseas adoption agency. More information can be accessed here.

Once granted by the court, an adoption order means that the adoptive parents will become the legal parents and the birth parents will no longer be legal parents or have parental responsibilities and rights.

Fostering

This is the term used to describe a formal arrangement relating to a temporary placement of a child in your home, often a “looked after child” whose care is arranged through a fostering agency or local authority. Fostering can be a hugely rewarding way of offering care to a child or young person. Any adult, regardless of their sexual orientation or whether or not they are in a couple, may apply.

The most essential fostering criteria are that the adult or adults must be over the age of 21, able to commit to being a foster carer on a full time capacity and have a spare bedroom in their house to accommodate a child. Again, a local authority can be contacted to start the process and there will thereafter be a number of interviews and visits, together with preparation groups, that are undertaken before a child is placed in your care. There are different types of fostering placements available, either on an emergency, short or long term basis. A fostering allowance is payable to you, usually on a weekly basis, having regard to the child’s needs.

Foster carers do not have parental responsibilities or rights in relation to the child or children in their care; however, rights can be applied for if the situation becomes permanent. More information can be obtained here.

Surrogacy

An alternative option to adoption or fostering is surrogacy. In such an arrangement, a surrogate mother carries a child with a view to the child, and the related legal rights and responsibilities in relation to that child, being passed to another person or persons. Again, such arrangements can be made by a single person or a couple, regardless of sexuality or gender, as long as they are over 18.

Written surrogacy agreements are not enforceable in the UK, and it is an offence to put in place commercial arrangements where money is exchanged. That is why it is even more important to seek legal advice on your surrogacy plans. There is an exception for “reasonable expenses” which can be paid to the surrogate mother (e.g. travel expenses or loss of earnings). Separately, there will be clinic costs which may include IVF treatment.

After the child’s birth, a “parental order” is obtained so that the child becomes the legal child of those named in that order. In the absence of that parental order, the birth mother will automatically be one of the child’s legal parents (as will her spouse or civil partner). It is therefore important to take legal advice on obtaining a parental order. The surrogate mother must freely agree to that parental order and such consent has to be given no less than six weeks after the child’s birth. The parental order itself has to be applied for before the baby is 6 months old.

Once granted, the child will be legally treated as if born to the person who obtained the order. Any parental rights which existed in other persons at the time of the child’s birth will no longer be in place.

Artificial insemination

Formally establishing parentage after artificial insemination can be dependent on the circumstances of conception, the nature of the relationship of the persons involved and whether the artificial insemination was after April 2009.

If the birth mother is married or in a civil partnership at the time of conception through artificial insemination, the husband / wife / civil partner will be deemed to be the child’s other legal parent (even if they are not the biological parent). This is true whether the sperm donor is known or unknown, and whether or not the birth mother was in the United Kingdom when impregnated. If however the child was conceived through sexual intercourse the other legal parent will be the biological father until the position changes through subsequent agreement or orders.

For female same sex couples not in a civil partnership or marriage, and where the birth mother conceives a child at a licensed fertility clinic in the UK, both she and her partner can complete a written consent form for the other person to be the child’s second legal parent. Both the birth mother and her partner will then have equal parental rights and responsibilities. Such consent can be withdrawn any time before the sperm, egg or embryo transfer. Parental rights can be obtained through the birth registration process (as long as the consent has not been withdrawn). 

For a situation where the birth mother conceives a child at an overseas clinic, then parental rights can be obtained by her female partner if “agreed female parenthood conditions” are met or otherwise through the joint registration of the birth, or a court order. 

By comparison, where artificial insemination has taken place and where a male is not married or in a civil partnership with the child’s mother, his parental rights depend on “agreed fatherhood conditions” (his written consent with the woman receiving treatment as to parentage, and confirmation that no other persons could be deemed to be parents through marriage or civil partnership), or otherwise through a court order.

Further information

There is a great deal of information online or through numerous organisations on adoption, fostering, surrogacy and artificial insemination. It is important to research all options to work out what would work best for you. The volume of information can at times be overwhelming and uncertain – particularly where overseas elements apply. Further, there are differing legal routes to parental rights which follow the type of relationship you are in (or not as the case may be). The developments in the law - particularly in the last ten years - have sought to remove any discrimination however, and following those routes do have the same destination.

Whatever route you choose to start your family, it is important for certainty and peace of mind to take legal advice on some of the options available to ensure that your rights and responsibilities are in place.

Our Family Law team specialises in all aspects of family law, including child law. For further information, please do not hesitate to contact us.

Family Law at MacRoberts

MacRoberts' specialist family lawyers advise on all aspects of family law, working collaboratively with our clients to help them find the best possible outcome.

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