Adoption for LGBTQ families

Adoption typically conjures an image of prospective adoptive parents going through a rigorous assessment before being approved by an adoption panel and matched with a child who needs a loving home. This is agency adoption, but there are other forms of adoption too. Here at NGA Law we routinely use adoption as a legal tool to help diverse families, particularly LGBTQ+ families, to ensure that the law matches up with the reality of their loving family units.

Adoption and donor conception for LGBTQ+ families

When conceiving a child with the help of a sperm donor, in many cases you can both be legal parents without the need to adopt. If you are in a female same-sex (or queer) relationship whoever gives birth to your child will be the legal ‘mother’ (regardless of your legal gender). If you are married or if you have fertility treatment at a HFEA licensed clinic in the UK, then your partner will normally be the second legal parent, and can be registered on your child’s birth certificate. In these circumstances there is no need for anyone to adopt.

However, in other situations you may not both be recognised as your child’s legal parents automatically.  This may be the case if you are not married and you either conceive at home (without any intervention from a clinic) or at a fertility clinic outside the UK. This is where second parent adoptions can be a useful tool to establish legal parenthood after your child is born.

The adoption process is usually relatively straightforward – much less complex than a full agency adoption – although it still takes some time and the right steps need to be followed in the right order.  You can use the adoption process designed for step-parents, which normally starts with you giving notice to your local authority of your intention to apply to adopt.  After that you will work with an assigned social worker who will prepare a welfare report to assist the court.  You can then make your court application which will be considered by a judge who will look at whether you both consent and whether the order is in your child’s best interests. Since the process is quite lengthy and you can’t apply to court until your child is six months old, you may want to put in place wills and guardianship documents while the process is running its course to protect your family.

Adoption and surrogacy for LGBTQ+ families

Parents who have a child through surrogacy always need to apply to become the legal parents after their child is born. Most gay and single dads apply to the family court for a parental order, which is the intended legal solution for surrogacy.

However, there are some LGBTQ+ parents who are not eligible for a parental order and need to find an alternative legal path. Most commonly, this applies to parents through surrogacy who don’t have a biological connection with their child (since you can only apply for a parental order if one or both of you is your child’s biological parent). This might be if you are a single woman conceiving with donor eggs and donor sperm, or if you are a trans parent and not able to use your own gametes.

Adoption is still an emerging legal path in surrogacy cases but one we are proud to be helping to forge.  In 2021, we represented a single non-biological mother through US surrogacy who was the first international surrogacy parent to be granted a UK adoption order: Adoption order granted to non-biological surrogacy mum in UK legal first – new reported NGA case – NGA Law.

The adoption process is a little more involved for parents through surrogacy than parents through donation, and typically starts with a preliminary court application to ask permission to make an adoption application before you can notify your local authority and begin the assessment process. However, this form of adoption also follows a non-agency path so it is more straightforward than the kind of full adoption process you would follow if you were adopting an unrelated child.

Parental responsibility for multi-parent LGBTQ+ families

Adoption doesn’t (yet) work as a legal solution for all LGBTQ+ families. At present, UK law only allows a child to have two full legal parents, even if their lived reality is that they have more. This works to the detriment of some LGBTQ+ families, for example parents in a polyamorous relationship or those who have entered into a multi-parent co-parenting arrangement (such as co-parenting with two mums and one or two dads).

Unfortunately UK adoption orders cannot be used to give a child more than two legal parents, so they do not work well for families with more than two parents. However, other solutions may be available. For example if you cannot become a legal parent you may be able to sign a parental responsibility agreement (if you are married to one of the legal parents) or seek a child arrangements order to give you parental responsibility so you share the ability to make day to day parenting decisions with your child’s other parents. It is not a complete solution, but you can also help cover some of the gaps with wills and guardianship documents.

At NGA Law we know that families come in all shapes and sizes and that, so long as they are filled with love, children will thrive. We have a long legacy of proudly representing the LGBTQ+ community and forging creative and novel solutions to ensure families have the best legal security possible.