To celebrate the end of Pride MonthBeverley AddisonA senior solicitor from the BTO’s family team takes us on a journey through Scotland’s history of family law for LGBTQ+ people. The third and final part of today’s video features her looking at fertility and adoption law, before moving on to the future.Also, see part one and two.
Modern families: The introduction of same-sex and fertility laws
Another legal battle for LGBTQ+ people has been the right to start a family.
Adoption was the only option for a formal family building process in the early stages of a relationship. The Adoption of Children (Scotland), Act 2007 was the first to give equal rights to adopt. The Looked After Children Regulations 2009 was also in effect. This allowed same-sex couples to be considered foster parents on the exact same basis as all other people.
The Human Fertilisation and Embryology Act 2008. made amendments to the law on human reproduction. This equalized the treatment of the same-sex parents and children and opened up new forms of family building that are more suited for LGBTQ+ families.
Legal protection was provided for lesbian couples who are seeking IVF treatment. The law also allowed the non-birth mother to automatically be included on the child’s birth certificate. This includes full parental rights and responsibilities. Modern medical advances have made reciprocal IVF possible for both mothers to participate in the child’s gestation. Gay couples found surrogacy more attractive and more common. Co-parenting arrangements also became more popular. This gave co-parenting couples more choices in choosing the legal parents of their child. This legislation allowed more support groups and lawyers to help these couples realize their dreams of becoming parents.
As the years go by, the legal landscape surrounding family-building for LGBTQ+ is complex. It will also continue to evolve. It can also be difficult to understand because of the patchwork legislation that underpins it. We have a modern family practice unit that specializes in helping clients in this situation navigate the field as easily as heterosexual couples.
Look Ahead
Although it might seem difficult to believe, we are still at the very beginning of LGBTQ+ individuals being able build their families with the (almost complete) support of the Law. Civil partnerships, for example, are only 16 years. Family building options, when supported by the appropriate legislation, are only available for 13 years. The same-sex marriage is only seven year old. Therefore, it is reasonable to expect more changes, amendments and progress to ensure that the laws are adapted to meet the needs of all members of the community and their families. This will also mean that more clients will need to seek out family law solicitors in the event of a breakup. It is important to be aware of any additional factors that might apply to LGBTQ+ persons in such situations.
In the future, I expect there to be more litigation and lobbying for legislative changes that will aim to improve acceptance and treatment of transgender people. We still have gaps in law that transgender individuals must be identified as’mother’ and ‘father’ on their child’s birth certificate. This is purely on the basis of gender identity rather than gestation. This will have to change.
For those who identify themselves as queer or gender non-conforming (including those who identify not-binary), a similar recognition will be required. Already, the Scottish government has announced that they will legislate to provide an “X” sex description on identity documents. This will likely flow into family law in cases of family building and formation.
The Law Commissions of England and Scotland are working together to reform the law of surrogacy. This will have a major impact on gay male couples. It will be easier to name the legal parents of the child upon birth.
The government has also announced a ban on the practice of conversion therapy for LGBTQ+ persons. This important legislation is expected to pass the parliament faster than any previous pro-equality legislation. It is a significant step towards equality for all.
Summary: In just a few decades, attitudes towards the LGBTQ+ community in Scotland have drastically changed. Even as recently as 1980s, there was a climate of hostility, homophobia and hostility towards LGBTQ+ people. It is easy to believe that more people are LGBTQ+ today. However, research has shown that people are happier, in part, because of these legislative changes, and can live their true selves.
