Beverley Addison

Modern families: the introduction of same-sex adoption and fertility law

For LGBTQ+ people, another uphill legal battle that has had to be won over the years is the right to build a family.

At the earliest stage, adoption was the only available option of formal family building for those in same-sex relationships. Equal rights to adopt were only first introduced in Scotland in 2007 via the Adoption and Children (Scotland) Act 2007. At the same time, the Looked After Children (Scotland) Regulations 2009 came into effect, allowing same-sex couples to be considered as foster parents on the same basis as everyone else.

The amendments to the law of human reproduction which were made by the Human Fertilisation and Embryology Act 2008 equalised the treatment of same-sex parents and their children, opening up different forms of family building more suited to LGBTQ+ families.

This included legal protection for the position of lesbian couples using clinics to have IVF treatment or artificial insemination, allowing the non-birth mother in such scenarios to be automatically included on the child’s birth certificate, with full parental rights and responsibilities. Medical advances have meant that reciprocal IVF now provides an option for both mothers to be involved in the gestation of their child. Surrogacy became a more accessible option which was popular with gay couples, and co-parenting arrangements became more popular, giving co-parenting couples more options with choosing who would become the child’s legal parents. The advent of this legislation also allowed for more lawyers and support groups to become involved with helping these couples to realise their dream of becoming parents.

The legal landscape in relation to family-building for LGBTQ+ remains complex and will continue to change at pace as the years progress. Moreover, the patchwork legislation which underpins it means it can be complicated to follow in a practical sense. That is why we have a specialist modern families practice unit, to help clients in this exact situation navigate the field with just as much ease as heterosexual couples can.

Looking Ahead

It might feel hard to believe, but we are still in the very early stages of LGBTQ+ people being able to build their own families with the (almost) full support of the Law. For example, civil partnerships are only 16 years old. Options for family building, supported by appropriate legislation, are only 13 years old. Same-sex marriage is only seven years old. It is, therefore, fair to expect that more amendments, changes and progress will be required to fully embed a suitable structure of laws catering for the whole community and their families. Of course, this also means that more clients will in time require to seek advice from family law solicitors if those relationships come to an end, and it is important that we are all aware of the additional factors that may be present for LGBTQ+ people in those situations.

Looking ahead, I predict that there will be further litigation and lobbying for legislative change which aims to achieve greater acceptance and treatment for transgender individuals. For example, we still have gaps in the law where transgender people need to be designated as ‘mother’ or ‘father’ on their child’s birth certificate purely based on gestation rather than gender identity. That will need to change.

A similar recognition will be required for those who are queer and gender non-conforming, including those who identify as non-binary. The Scottish government has already announced their intention to legislate in order to start providing an “X” sex descriptor on identity documents, and this will no doubt flow through into family law where that applies to family formation and building.

Reforms to the law of surrogacy are also well underway, with the Law Commissions of Scotland and England working together to establish a streamlined process for legal parenthood. This will most heavily impact gay male couples, with it becoming easier for them to be named as the child’s legal parents on birth automatically.

Finally, another important piece of work that has been announced by the government is a ban on conversion therapy for LGBTQ+ people. This is important work that I anticipate coming through the parliament more easily than previous pro-equality legislation, and it is an important step towards true equality for all.

In summary, social attitudes towards members of the LGBTQ+ community have changed dramatically in Scotland over just a few decades. During even as recently as the 1980s, the climate towards LGBTQ+ people was one of extreme homophobia, hostility and public opposition. As a result of this, it can be easy to fall into the trap of thinking that “more people nowadays are LGBTQ+”, but research shows that actually it is not that the numbers have grown substantively, but rather that people feel more comfortable today – in part thanks to these legislative changes – to live as their authentic selves.

Beverley Addison is a senior solicitor at BTO LLP.