Gamble & Ghevaert

The transition will take effect following the implementation of the final piece of the 2008 Human Fertilisation and Embryology Act. This last section is aimed at helping same-sex and unmarried couples who seek to have surrogate children and will allow them to secure legal parenthood in a new, simplified manner. At present, only married, heterosexual couples can use this route.

“These changes bring the law up to date with the realities of modern 21st-century life and recognise that increasing numbers of same-sex and unmarried couples are having children together,” said Natalie Gamble, of the fertility law firm Gamble and Ghevaert.

Surrogacy has become increasingly common and offers couples an alternative route to parenthood if all other methods, including IVF treatments, fail. Current legislation allows heterosexual, married couples to get a parental order to give them a birth certificate for a child born to a mother with whom they have entered into a surrogacy agreement. But gay, lesbian and unmarried couples cannot do this. The surrogate mother has to be named on the birth certificate. If she is married, her husband is legally considered to be the father.

An example is provided by the story of Steven Ponder and his partner, Ivan Sigston. Both are police officers. Last year, they became one of the first gay couples to father a baby in Britain when Ponder’s married sister, Lorna Bradley, gave birth to a boy, William.

Crucially, however, Lorna Bradley’s name appeared on the birth certificate, which made her a legal guardian of the child. Ponder and Sigston could have applied to adopt the baby. If successful, they would have been given an adoption certificate to replace his original birth certificate. But adoption is complex and involves the intervention of social workers and other professional groups.

The new system is far more streamlined. Provided that a court is satisfied that two men are in a stable relationship; that no fees, other than expenses, are paid to the surrogate mother; and that it is in the child’s best interest, then it will award a parental order for a birth certificate to be drawn up with both men named as parents, and therefore legal guardians. “Lesbian couples and unmarried couples usually have other routes available to them if they want to have children, but surrogacy is particularly important to gay men, so they will get most out of this change in legislation,” said Gamble.In effect, the law has now opened the doors in order to make it easy for a gay man and his partner to have children.

This point was backed by Ben Summerskill, chief executive of Stonewall, the gay rights campaign group: “We are delighted that the reality of people’s family lives is being recognised at last, that both lesbian and gay couples no longer have to go through the unpleasantness of an adoption procedure.”

Gamble warned, however, that while the new legislation would make it easier for gay couples to have children, the rules governing surrogacy in the UK remained badly out of date.

“There are particular pitfalls for single parents and those going abroad. In the latter case, a couple returning to England with a surrogate child find that the law does not recognise their right to parenthood. It can cause immense distress. There are a lot of aspects of surrogacy that now need to be addressed urgently.”

More information about surrogacy law, international surrogacy law, and how the law is changing for same sex and unmarried couples from Gamble and Ghevaert LLP.