As family structures continue to evolve with increasing recognition of same sex couples and alternative pathways to parenthood, the law of England and Wales lags behind in key areas. One of which is the recognition of joint motherhood in cases of donor conception. Despite the societal embrace of diverse family units, the legislative framework, specifically under the Human Fertilisation and Embryology Act 2008 (HFEA), creates a troubling disparity between female same sex relationships and heterosexual couples when it comes to legal parenthood.

Sections 42 and 43 of the HFEA: the gatekeeper of legal parenthood for joint mothers 

Sections 42 and 43 of the HFEA sets out clear requirements: for a non-carrying mother (the biological mother in some cases) to be legally recognised as a parent, she must either be married/in a civil partnership to the carrying mother at the time of donor conception treatment or the couple must have undergone the treatment in a UK licensed fertility clinic. These provisions are intended to provide a clear and regulated pathway to legal parenthood in donor conception scenarios. However, it inadvertently penalises couples who do not wish to or are unable to follow these specific routes.

For instance, couples who undergo treatment overseas or opt for home insemination (perhaps for financial, cultural or personal reasons) are left without the legal protection of joint parenthood. In these cases, even if the non-carrying mother is the biological parent having donated her egg to her partner who carried the child, she cannot be legally recognised as a parent under sections 42 and 43. This creates a glaring lacuna in the law.

Legal inconsistencies and discriminatory consequences

This legislative gap becomes increasingly concerning when compared with the status of male donors or biological fathers. A man who is not married/in a civil partnership to the mother of the child or has not donated sperm via a UK licensed fertility clinic (but overseas or through home insemination) will likely still acquire legal parenthood by virtue of biology, unless displaced by a formal legal process (such as a parental order or adoption). There is no requirement for the male parent to formalise his relationship with the carrying mother or undergo treatment in a licensed setting.

This disparity suggests an unequal treatment of female biological parents in same-sex relationships. It could be argued that this amounts to discrimination on the ground of sex and violation of one’s right to respect for private and family life. While the law justifies this imbalance by offering adoption (including step-parent adoption) as an alternative remedy, many consider this inappropriate. It requires a biological parent to submit to an intrusive and often superficial assessment of their fitness to parent, a process usually reserved for strangers or non-biological individuals. The result is a skewed legal narrative: the child’s biological mother becomes their “adoptive” parent, failing to reflect the important legal, practical, biological and psychological reality of the child’s identity.

The need for legislative reform

In a legal landscape increasingly called upon to reflect the realities of modern families, this area of law is outdated and arguably, unnecessarily rigid and discriminatory. The reliance on marriage/civil partnership or UK licenced fertility clinics as a gateway to legal parenthood for joint mothers, excludes many legitimate and loving family structures, leaving them vulnerable and unprotected.

England and Wales have made significant strides in recognising LGBTQ+ relationships and parenting but seemingly, there remains a need to adapt the law to reflect the diversity of pathways to parenthood made possible by medical advancements and the global world in which we live.

However, there are signs that legal reform affecting the LGBTQ+ community may not be forthcoming in the near term, such as the recent Supreme Court ruling that the definition of a “woman” includes only biological females and not trans women.

If the law is to serve all families fairly, it must keep pace with medical innovation and social change. The sooner legislators address these inequalities, the sooner we will have a legal system that truly reflects the rich and varied reality of modern family life.