Having parental responsibility means you are legally responsible for making the major decisions about your child’s upbringing. A mother automatically has parental responsibility for her child from the moment of his or her birth and the father also has automatic responsibility if the couple are married.

The situation is more complex for unmarried fathers, men and women in same-sex relationships with biological parents, and same-sex couples who have a child through fertility treatment. However, changes to family law in England and Wales introduced in 2003, 2004 and 2007 have given these groups more rights around parental responsibility and fertility treatment.

Gay biological fathers

Since 2003, a gay man who has fathered a child from a previous relationship or through sperm donation will have parental responsibility if he is named on the birth certificate. Otherwise, he will only be granted responsibility with the mother’s agreement or through a court order.

Gay non-biological parents

The Civil Partnership Act 2004 entitles a man or woman who enters into a civil partnership to become a step-parent to their partner’s child. The biological parents will still have parental responsibility, but the step-parent can acquire responsibility with their consent, through a court order or by applying to adopt the child.

If the non-biological parent is not in a civil partnership with the child’s biological parent, they cannot become a step-parent, but they can obtain parental responsibility through a court order or adoption.

Fertility treatment

Family law has now made it legal for gay men and women to receive fertility treatment (the Human Fertilisation and Embryology Act 2008), and for this to be provided on the same basis as for heterosexual men and women (The Equality Act (Sexual Orientation) Regulations 2007).  In particular, the 2007 regulations require civil partners to be treated in the same way as married heterosexual couples.

However, for same-sex couples the non-biological parent does not automatically have parental responsibility in cases of artificial insemination, and cannot be granted responsibility in cases of surrogacy. The rules may change in the future so that both unmarried heterosexual couples and people in same-sex relationships have the same rights to parental responsibility after fertility treatment as married couples.

Family law advice from the Co-operative Legal Services

Our expert team is here to provide free family law advice over the telephone, on a range of issues including parental responsibility. Our service is confidential and with no obligation. We will explain your options and put you in touch with specialist organisations if necessary.