The Marriage (Same Sex Couples) Act is 10 years old. In the UK, any couple can marry. Likewise, thanks to this courageous pair, any couple can now get a civil partnership. On marriage, the law has kept pace with the diversifying society it exists to regulate and protect.
If you reflect on what was updated – the religious institution of marriage – and how long it had been the way it was, it hits you afresh how monumental this step forward was. Yet here we are. The equality of love has become a cliche. Young children have only known a world where every auntie and uncle they’ll ever have could get married. It is meticulous and slow but ultimately, whether through parliament or the courts, the law moves forward.
Doesn’t it? Sure, queers can marry, but what happens when we want to become parents? For context, in England and Wales in 2021, 23.9% of lesbian couples had children compared with 39.7% of heterosexual couples. Despite the steady increase in LGBTQ+ families over recent decades, our road to parenthood is riddled with legal potholes. For queer parents and our children, “equality” is, at best, a veil to hide a maze of modern semantic and ancient ideological hierarchies.
The many aspects of this legal lag could fill a book – so here are just a couple of examples that, in my experience, are seldom understood even among LGBTQ+ people.
A lesbian couple can become two mums together but, legally speaking, never two mothers. The woman who gives birth is “mother”, and their partner can only be registered as “parent 2” on the child’s birth certificate. As the non-birthing parent, society may see you as a mother of a different yet equally valid kind, but the law undermines this. As far as it is concerned, mother = giving birth. It pays no mind to whose egg was used, the lived reality of the second parent, or whether either parent in fact uses a different label.
It is crucial that our birth registration system provides clarity about a child’s conception and birth. The birth certificate is the child’s document of legal parentage, and accuracy is of the utmost importance for their lifelong understanding, wellbeing and privacy. None of this conflicts with creating flexibility to recognise LGBTQ+ family structures. Indeed, it is our current system that hides, fudges and confuses genetic and parental information.
Or take surrogacy. Surrogacy is legal in the UK but is not protected by law. This might sound like splitting hairs, but in reality, it makes all the difference. The relevant law sees a woman who chooses to be a surrogate as no different from a woman who chooses to become a parent. Legally, she (or he or they if they are trans) has no choice about the label used.
In other words, a surrogate, who is likely not genetically related to the child, must register as “mother” on the birth certificate and – wait for it – their spouse or civil partner is entitled to register as “father”. The “intended parents” – logistically, socially and, - at least for one, genetically the parents from birth – face a long wait and approval by social services before a court will grant them legal parenthood. At that point they also only have access to the label “parent”, never “mother” or “father”.
The legal situation for trans parents and our children is usually as bad as all this, and then some. To give you a taste, I am legally a man (and, for all you essentialism fans, legally male) except, allegedly, when I am a parent. Schrödinger’s dad?
This is how the government justifies not recognising parents like me, trans men who give birth, as fathers or simply parents: they say, although experts disagree, that I am male for most purposes but female – ie my gender recognition certificate becomes null and void – for all of parenthood, not just birth. Does this mean I am legally both sexes simultaneously? (I have genuinely never received an answer on this). It might strike you as a tortured way of refusing to legally recognise that medical transition does not inherently cause sterility, and that trans people have equal rights to a family life.
Today is Donor Conception Awareness Day, so here’s one more example of the inequalities facing LGBTQ+ families. This one could inspire hope because it could be fixed quickly and easily. Indeed, the fix was already announced … almost two years ago.
Many LGBTQ+ couples and individuals who choose to have a baby have no option but to go down the route of assisted reproduction. At this point, they encounter outdated rules that require them to pay for private fertility treatment before they qualify for NHS-funded treatment.
One couple who campaign against this “gay tax” paid for 12 private rounds of IVF and IUI, costing an average of £25,000 to £30,000, before their local NHS funding board deemed that they had “proved” their need for fertility treatment. Heterosexual couples can qualify simply by reporting that they have been trying to conceive at home for two years without success. The technical difference, which, accidentally or otherwise, disproportionately affects LGBTQ+ people, is whether donor gametes (sperm or eggs) are needed.
Having announced an end to this discrimination, the government continues to drag its heels. As a result, 90% of the 42 local NHS funding boards in England are still getting away with it. All the while, thousands of LGBTQ+ people who cannot afford private treatment are steadily becoming too old to qualify for it anyway. LGBT Mummies is also pushing for the government to make good on its promise, pointing out that, as tax-paying citizens, LGBTQ+ people must have equitable access to healthcare.
You might ask why queers don’t make like queers and go DIY. Some do choose at-home insemination – but there are risks. Unlike heterosexual and hetreosexual-passing couples, lesbian couples and queer couples that do not pass as straight cannot register a birth simply by giving their word that they are the parents. If they are married or civil partners and don’t go through a clinic, they must show proof of this; if they are not, the second parent cannot go on the birth certificate. Likewise, the fertility regulator, the Human Fertilisation and Embryology Authority, has banned the purchase of sperm from cryobanks for use at home. So the couple would have to find a known donor, which is not always possible and entails further legal uncertainties. Many queer couples have no choice but to opt for clinic treatment – it is their only path to legal clarity and something akin to equality.
When becoming parents, on top of all these other inequalities, LGBTQ+ people carry a “burden of proof” – kinds of forced emotional, social and administrative perfection to which cis, straight people are not and would never be subject. Donor conception is increasingly common, queer parents are increasingly common, and our children are increasingly old enough to learn the ways in which their families are not treated equally by the law. By ignoring the urgent need for root-and-branch reform of UK family law, the government and the courts are sustaining countless forms of discrimination, giving themselves an exponentially more monumental problem as the years – and society – march on.
Freddy McConnell is a freelance journalist
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