Who is a legal parent and who has parental responsibility?

Method of conception

Who are the legal parents

Who has parental responsibility

Corrective action

Sexual intercourse – opposite sex married couple

The birth mother and her husband.

The biological parents.

None required.

Sexual intercourse – opposite sex unmarried couple

The birth mother and the biological father.

The birth mother and the biological father provided he is named on the birth certificate and the birth is registered after 1 December 2003. 

If named on birth certificate no action required. 

If not, an unmarried father can acquire parental responsibility in one of the following ways:

• By subsequently marrying the birth mother;
• By entering into a parental responsibility agreement with the mother; or
• By obtaining a court order.

Surrogacy where the surrogate is married or in a civil partnership at the point of conception

On birth the surrogate and her spouse/civil partner will be the legal parents unless it can be shown that the spouse/civil partner of the surrogate did not consent to the conception. 

The birth mother and her spouse/civil partner. If the child is born in England or Wales, it will be the responsibility of the surrogate to register the birth. The surrogate and her spouse/civil partner with be registered on the birth certificate as the child’s legal parents. If however, everyone agrees the child can be registered with the surname of the intended parents.

To rectify the position the intended parents will need to apply for a parental order not less than 6 weeks after the child is born but before the child is 6 months old. 

Surrogacy where the surrogate is unmarried

Again, as the birth mother, the surrogate will be the legal mother on birth.  If the intended father is the biological father, then normally he will be the legal father. If, however conception takes place at a UK fertility clinic then someone other than the biological father can be nominated as the second legal parent such as a second intended mother if the parents are in a same sex relationship.

Again, the surrogate will be named on the birth certificate as the child’s legal mother, and she will automatically acquire parental responsibility.  If the biological father is the intended father, he can also be named on the birth certificate provided he attends the birth registration.  Once named on the birth certificate he will have parental responsibility for the child. If the intended parent is not the biological father, the second parent will need to take with them the signed HFEA forms which nominate them as the second parent.  They will then acquire parental responsibility for the child.

The intended mother will need to apply for a parental order as will the second intended parent if not the second legal parent on birth.

Donor conception – same sex female couple who are either married or in a civil partnership at the point of conception

The birth mother and her spouse/civil partner provided conception takes place after 6 April 2009 via IVF or artificial insemination whether at home, at a UK clinic or overseas. This rule applies unless it can be shown that the spouse/civil partner of the birth mother did not consent to the conception.

The birth mother and the non-birth mother can both be registered as the parents on the child’s birth certificate and will both have parental responsibility for the child.

None required.

Donor conception –same sex female couple who are not married or in a civil partnership

The birth mother and her partner provided the child is conceived at a UK licensed clinic after 6 April 2009 and both parents have completed and signed (in advance of conception) the necessary HFEA forms WP and PP which nominate the birth mother’s partner as the second legal parent. Both the birth mother and her partner should have received counselling and proper information about the forms before signing them. If however, conception took place prior to 6 April 2009 or the above formalities were not complied with, the non-birth mother will not be the legal parent of the child.

The birth mother will have parental responsibility and if registered on the birth certificate, her partner will also have parental responsibility. 

If the necessary formalities were not complied with and the non-birth mother is not the legal parent and does not have parental responsibility from birth, she will need to apply for a child arrangements / parental responsibility order. Alternatively, she could subsequently marry the birth mother and sign a step-parent parental responsibility agreement with the birth mother.

Donor conception – opposite sex married couple – husband/father is not the biological father of the child.

The birth mother and her husband provided they were married at the point of conception and it cannot be shown that he did not consent to the treatment. This rule applies to conceptions which take place through IVF or artificial insemination whether at home or at a clinic here in the UK or overseas. 

The birth mother and her husband will be named on the child’s birth certificate and they will both automatically have parental responsibility.

None required.

Donor conception – opposite sex unmarried couple – husband/father is not the biological father of the child.

The birth mother and her partner provided formalities are complied with.  Between 1 August 1991 and 5 April 2009, the unmarried, non-biological partner simply needed to have treatment together with his partner at a UK fertility clinic.  However, from 6 April 2009 both partners must complete and sign HFEA forms (WP and PP) prior to conception. The clinic should also ensure that the couple have received counselling and that they have been provided with proper information prior to signing the forms.

The birth mother. Her partner will also have parental responsibility provided he is the legal parent and is registered on the birth certificate. This requires the consent of both legal parents.

In the event that the non-married, non-biological father is not the legal parent or does not have parental responsibility because for example he is not named on the birth certificate or conception took place overseas there are steps he can take to acquire parental responsibility or legal parenthood after the birth. He can for example apply for step-parent adoption.