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Vardags Family Law Essay competition 2023/24 | Aisha Dondo


Aisha Dondo - Oxford Brookes University

Same-Sex Parent Rights in Family Law

The evolution of family law reveals a transformative journey regarding same-sex relationships. Landmark legal cases and legislative changes have played a crucial role in shaping the recognition of same-sex relationships and parenting rights. For instance, the repeal of discriminatory laws and the legal recognition of same-sex relationships through the Civil Partnership Act 2004 and subsequently the Marriage (Same Sex Couples) Act 2013 signify societal progress towards acceptance. In the recent decades, the recognition and protection of same-sex parenting rights have become essential to the changing landscape of family law in England and Wales. The aim of this essay is to comprehensively analyse the legal framework and societal attitudes surrounding same-sex parenting in this jurisdiction, shedding light on the challenges faced and the progress that has been made.

Firstly, the existing legal framework for same-sex parenting in England and Wales is multifaceted. Statutes like the Adoption and Children Act 2002 and the Human Fertilisation and Embryology Act 2008 govern the rights of same-sex couples in adopting and undergoing fertility treatments.

Understanding the legal requirements for adoption and assisted reproductive technologies (ART) is essential in grasping the nuances of same-sex parenting rights. Section 46 of the Adoption and Children Act 2002 explicitly prohibits discrimination on the grounds of sexual orientation when determining suitability for adoption ensuring equal opportunities to adopt. Similarly, the Human Fertilisation and Embryology Act 2008 is crucial to regulating assisted reproductive technologies (ART) for same-sex couples. This statute recognises the advancements in reproductive science and aims to provide legal clarity for couples, including those in same-sex relationships, seeking fertility treatments such as in vitro fertilisation (I(F). The Act establishes the legal parentage of children conceived through ART, safeguarding the rights of same-sex couples who choose these methods to build their families.

However, despite these legislative measures, the legal landscape is not free from challenges. Ongoing debates and discussions often centre around issues like surrogacy arrangements and the need for further reforms to address gaps in the legal protection of parental rights for same-sex couples.

Scholars argue that this framework, while progressive, may require additional preponement to keep pace with the fast-paced evolution of societal norms and technological developments in the realm of assisted reproduction. There is still a need to secure equal treatment for same-sex couples in comparison to heterosexual couples as well as societal biases and discrimination. Lastly, the law does not do enough to ensure equitable access to fertility treatments for same-sex couples, especially in cases where the National Health Service (NHS) funding may not cover certain assisted reproductive technologies.

Impact of Adoption Rights on children raised by same-sex couples

Despite the strides towards equality, same-sex couples still face unique challenges in the adoption process. Reforms and initiatives have aimed to ensure equal adoption rights, the issues such as bias in assessment persist. Scholars such as Goldberg and Farr have extensively researched the well-being of children in same-sex parent families, ending that there are on discernible differences in outcomes compared to children raised by heterosexual couples, both households are capable to raise socially, academically and emotionally nurtured children. These endings challenge the old assumption that children require a female and male mother and father for optimal development.

Once again, the emphasis is on the best interests of the child, as enshrined in the Children Act 1989. Ultimately, cases like Re G (Children) have reinforced the idea that decisions should be based on the individual circumstances of case, focusing on the ability of the adoptive parents to meet the childs needs rather than their sexual orientation.

Assisted Reproduction Technologies (ART) and Same-Sex Parenting

English law has adapted to modern advancements through the Human Fertilisation and Embryology Act 2008. Techniques such as in vitro fertilisation and surrogacy enable same-sex couples to have biological children. Section 42 of the Act, for example, stipulates that both partners in a same-sex marriage or civil partnership are recognised as legal parents if the child is born through assisted reproduction. Moreover, English law has evolved to accommodate surrogacy arrangements, a common method for same-sex couples to become parents. The Surrogacy Arrangements Act 1985 has undergone amendments, and the Law Commissions 2019 consultation on surrogacy proposed further changes to better regulate the practice and enhance legal protection for all parties involved. In the context of same-sex parenting, English family law has also made strides on fostering equality. The Marriage (Same-Sex Couples) Act 2013 legalised same-sex marriage, providing equal marriage rights and obligations to heterosexual and same-sex couples alike. This has had a profound impact on the legal recognition and protection of families headed by same-sex couples, further underpinning the principles of equality in family law.

Parental rights and responsibilities

Historically, same-sex couples faced legal challenges and discrimination in asserting their parental rights. However, notable advancements have occurred, recognising the societal attitudes, and acknowledging the rights of same-sex parents. The primary legal instrument governing parental rights in England and Wales is the Children Act 1989, which underwent amendments to address to shift of family structures. The laws attitude will influence how the society views same-sex parenting rights. The evolution of English law and policies pertaining to LGBTQ+ issues, including parenting rights, reflects a broader societal shift towards inclusivity and recognition of diverse family structures. As the legal landscape becomes more supportive, acknowledging and protecting the rights of same-sex parents, it fosters an environment that encourages acceptance and understanding within the wider community.

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Adoption and Children Act 2002, s.46

A.E Goldberg, Lesbian and Gay Parents and Their Children: Research on the Family Life Cycle (American Psychological Association 2010)

R.H Farr, LGBTQ-Parent Families: Innovations in Research and Implications for Practice, (Springer 2017)

Re G (Children) [2006] UKHL 43

Human Fertilisation and Embryology Act 2008, s.42

Law Commission, Building Families Through Surrogacy: A New Law (Consultation Paper No 237, 2019)













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