Article written by Mandeep Clair, Solicitor, Family department
You wouldn’t be surprised to hear that, when a same-sex couple have a child following lawful IVF treatment, each of them has a right to be registered as the child’s legal parent. However, as a High Court case showed, whilst the law has generally kept pace with social change, the same cannot always be said of bureaucracy.
The case concerned an eight-year-old boy who was born to a long-established same-sex couple. His gestational parent was, without difficulty, registered as his mother. However, her partner asserted that she was informed by a local authority registrar that she could not appear on the child’s birth certificate because she was not his father, and he could have only one mother.
Although the contents of the conversation were disputed, the partner contended that the registrar told her she would need to seek an adoption order if she wished to have any legal status in relation to the child. Allegedly on the registrar’s advice, she subsequently obtained such an order.
After she launched proceedings, the Court noted that the child was born following IVF treatment in a licensed clinic. The partner was therefore, as a matter of fact and law, the child’s second female parent pursuant to Sections 43 and 44 of the Human Fertilisation and Embryology Act 2008. She was entitled to be registered as such under Section 10ZA of the Births and Deaths Registration Act 1953.
If the registrar had advised her otherwise, she was manifestly incorrect to do so. Whatever was said during the conversation, it was wrong in law not to identify the partner as the child’s parent on the birth certificate. The result was that the certificate did not reflect his legal parentage.
The Court was entirely satisfied that it was appropriate to issue a formal declaration of parentage in the partner’s favour. In also revoking the adoption order, the Court found that it was based on a mistake and was entirely irregular. Given that she was already the child’s legal parent, there was never any need for such an order. The ruling opened the way for the partner to register the child’s birth afresh, this time officially identifying her as the parent.
In conclusion, the Court noted that administrative steps such as the registration of a birth are fundamental to an individual’s identity, legal status, and familial relationships. The seemingly mundane bureaucratic task of correctly registering a birth is a decisively important step with enormous significance for both child and parents.