Helen Greenfield examines the growing trend towards the legal recognition of same sex marriage & adoption.

A growing number of governments around the world are considering whether to grant legal recognition to same-sex marriages. Nearly two dozen countries currently have national laws allowing gays and lesbians to marry, mostly in Europe and the Americas. However, despite the fact that the trajectory is in favour of recognition, things remain complicated in this area of law. The following case study is a clear example of the way that society often moves faster than the laws that govern it.

A lesbian couple approached me about their 2 year old son (B). He had been born in Luxembourg whilst they were living there with his brother (A) who was 5. The couple were married and had agreed that L should be the biological mother of both boys. Her partner, F, was recognised on A’s birth certificate but was not mentioned on B’s birth certificate. However, the couple felt it would be in B’s best interests to add F’s name to his birth certificate in order that she was also recognised as his mother.

The couple had met whilst one of them was living in France, the other in Belgium. Eventually, they started living together in Belgium and got married a few years later whilst on holiday.  On their return to Brussels, they updated their status as a legally married couple by registering their marriage in the Belgian local civil registers.

They decided they wanted to start a family and approached a fertility clinic in Brussels. They agreed that it would be best for L to be the biological mother and that they would use sperm from an anonymous donor. The fertility treatment was successful and L gave birth to a son, A, in Brussels, Belgium. A has Belgian nationality based on the nationality of L as the biological mother. They were able to follow a straightforward process under Belgian law which enabled F to be recognised as A’s mother through adoption. As a result of this, F is now registered as his mother along with L on his birth certificate.

Just over a year later, F accepted a new job in Luxembourg and the family of L, A and F all moved there.  L and F then decided they wanted another child.  They went back to the same clinic in Brussels where they had had A and, using sperm from the same anonymous donor, L became pregnant again.

They decided to have the new baby in Luxembourg where they were living. However, at the time, Luxembourg did not recognise same sex marriage so when B was born, L’s status under the legal system in Luxembourg was that of a single mother. B had Belgian nationality based on L’s nationality.

Shortly after B’s birth, the couple began to plan a move to the UK where F had citizenship. After taking legal advice, L and F agreed that it would be more straightforward to register F as B’s mother here in the UK. They were advised that, as a matter of English law, F would be recognised as B’s parent. In 2010, when their marriage was registered in Belgium, it would have been recognised in England & Wales as a Civil Partnership under section 213 and schedule 20 of the Civil Partnership Act 2005.  Accordingly pursuant to section 42 of the Human Fertilisation and Embryology Act 2008 (“HFEA 2008”) F would have been recognised as a parent. Since the enactment of the Marriage (Same Sex Couples) Act 2013 their Belgian marriage is also now recognised in England & Wales as a marriage under section 10 of that Act. Accordingly section 42 of HFEA 2008 still applies.

Both L and F agreed that it would be far better for both A and B to be registered as having the same parents on both their birth certificates and their passports.  They planned to update the civil registers in Belgium and to have F included on the birth certificate and passport of B.

Based on the advice they received from the Belgian embassy and the Belgian Ministry of Justice, because they did not live in Belgium, there was no process available to them to have F recognised as B’s parent there. They were, though, advised that as a matter of Belgian law the Belgian authorities would accept a UK declaration of parentage in favour of F in order to update their civil registers.

The requisite form (C63) was completed and sent, together with statements from both F & L setting out the background to the application and highlighting their consent to the declaration. A short hearing was listed and, happily, the declaration was made.

It is important to note that, on June 18 2014, Luxembourg’s Parliament, the Chamber of Deputies, overwhelmingly approved legislation that allowed gay and lesbian couples to wed and to adopt children. The bill, which took effect in early 2015, was championed by the country’s Prime Minister, Xavier Bettel, who is openly gay.  If B had been born only a few months later all of L and F’s efforts as detailed here would therefore have been entirely unnecessary.

The debate regarding the recognition of same-sex marriage includes discussion based upon social viewpoints as well as religious convictions, economic arguments, health-related concerns and a variety of other issues. It is clear that in the case described above inconsistent approaches to same sex marriage internationally are preventing parents from being recognised as such. The law needs to move beyond its current “one size fits all” approach in order that complex applications such as the one described here are no longer necessary.

Helen Greenfield is an associate at Family Law in Partnership. She advises on all matters relating to family breakdown, divorce and cohabitation, focusing particularly on children issues, where appropriate. Helen’s aim is to ensure the situation people face, as a result of their relationship breakdown, is made as easy as it can be. She works with clients to deal with their problems in a constructive manner so the client, any children and everyone else involved can move forward positively. Learn more about Helen’s experience and practice here.

This article first appeared in Solicitors Journal, October 2016, and is reproduced by kind permission.