Same Sex Parenting (The Male Perspective)

The desire to be a parent is not specific to gender or sexual orientation. In the past, for many gay men the decision to come out as gay was often coupled with an acceptance that they would never be a parent. Societal norms (and the facts of biology) taught them that <!–more–>having children and being a family was not something that was available for them.

Many gay men would marry in order to avoid society’s potentially negative reaction if they were to “come out”, and some would only discover their homosexuality after marriage and for some after having children. Despite the fact that their homosexuality in no way affected their capacity to love and care for their children traditional attitudes were very different to what they are now. Many judges refused to accept the notion that a good parent could also be homosexual and frequently made the prejudiced, unsubstantiated and speculative assumption that a good parent could not possibly be gay. For such judges, a parent’s homosexuality would always have a negative effect on the children, so the day to day care of the child or children was awarded to the heterosexual parent (even against the children’s wishes in some cases), the argument being that this was obviously in the best interests of the children.

The hearing (or trial) would tend to focus almost exclusively on the issue of homosexuality with the gay parent trying (and in most cases failing) to convince the judge that there would be no detrimental effect on the child; and with the other parent arguing that the child would surely be stigmatised, traumatised, molested, perverted and sexually confused if allowed to live in an homosexual environment. The House of Lords’ case of Re D [1977] 2 WLR 79 is a startling example of the ignorance and/or blatant homophobia of many of the judiciary at that time. It was conceded that the father did not constitute any danger to his son but nevertheless should be separated from him and the child adopted, the House of Lords ruling that the fact that the father was gay “destroys at once the main argument which is strong in normal cases that the maintenance of the (parental) tie with the possibility of parental influence is valuable to a child and should not be cut off.”

Thankfully, attitudes have moved on and there is growing acceptance that the sexual orientation of a parent has nothing to do with good parenting and that same sex parents are as able as heterosexual parents to meet the needs whether physical, emotional or financial of the children in their care.

That is not to say that gay parents themselves should not be insensitive to the effect on their children of homophobic abuse, unpleasant and derogatory remarks from their peers and bigoted attitudes from adults in the community (or even in church). Whilst the children of same sex parents may well suffer prejudice and intolerance the quality of the parenting they receive can far outweigh the negative impact of bigotry.

Adoption and surrogacy have in recent years become the routes taken by gay men (whether on their own or as a couple) in order to become parents.

Adoption

Under the Adoption &amp; Children Act 2002 a single gay man or a same sex male couple are able to adopt. Whilst there were 69,540 ‘looked after’ children (ie in the care of local authorities) in England as at 31 March 2015, the number of children adopted in the year to 31 March 2015 was 5,330. Of that sum, 450 (or less than 8.5%) were adopted by same sex families, up from 330 and 240 respectively in the previous two years. There are no available statistics on the number of adoptions by gay men however, but, as an illustration of the (relatively) small numbers, of the 10,915 approved adopters (many of whom would of course be part of a couple adopting together) as at 31 March 2014 just 560 (made up of single men and couples adopting together) identified as gay.

Surrogacy

Surrogacy is the practice whereby a woman agrees to carry to term and give birth to a child for someone else. She may be the biological mother but not necessarily so. Usually, at birth, the baby is handed over to and is and is cared for by the intended parent or parents.

It is a criminal offence (punishable by up to three months’ imprisonment or a fine) to negotiate surrogacy arrangements or to compile information with a view to negotiating surrogacy arrangements on a commercial basis. This effectively prevents fertility clinics and professional agencies from providing matching services between surrogates and intended parents.

However, no offence is committed by the surrogate and the intended parent(s) where they negotiate a surrogacy agreement by themselves. Many gay men using this route to become parents have sought out and entered into agreements directly with women overseas.

Surrogacy arrangements are unenforceable in this jurisdiction. If the surrogate changes her mind or refuses to hand over the baby the intended parents cannot compel her to do so by threatening (or taking) court action for breach of contract.

Further, if the surrogate is married then the surrogate’s husband is treated as the legal father of the child, even when DNA tests clearly establish that not to be the case; but if she is not married or in a civil partnership then the biological father will normally be treated as the child’s legal father at birth. If the birth is registered in the UK the intended father can be named on the birth certificate.

A same sex gay couple can jointly apply for a parental order to give effect to their parental rights if certain conditions are satisfied, but a single man is unable to do so. Same sex partners are also permitted to have both names on their child’s birth certificate

There are no reliable statistics on the number of gay men who have become parents with the support of surrogates but anecdotally the numbers seem to be rising year on year.

There are however many same sex families where the parents are not married or civil partners and where one parent has not yet acquired parental responsibility for any child born to or adopted by the other (whether during or prior to the commencement of the relationship and/or a previous relationship) and where that child is now treated as a child of the family. Thus a parent may have no legal status or rights whatsoever in respect of their children which can lead to practical difficulties.

First the parent without parental responsibility may not be able to deal with schools and doctors if the other parent is unavailable to make decisions affecting the child as they will have no recognised status in the child’s life in the eyes of authorities.

Secondly if the relationship breaks down the parent without parental responsibility would need to apply to the court for a child arrangements order to acquire rights in the absence of agreement to spend time with the child.

What would seem to be clear is that although the law in relation to same sex parenting has progressed society’s attitudes towards same sex parents and their family relationships have improved at a much slower rate. We have not yet got to the point where all family relationships are accorded the same value and respect and gay parents are not treated as different and somehow not as good. Will society in time come to accept and recognise a gay partnership with children as a family? Those opposed ask – what do you call each parent? Would two fathers both be called daddy or one daddy and one papa for example? But does the name really matter? It is the parent/child relationship that is important.

Whilst is seems that the Fox TV Network in America is willing to depict and portray somewhat positively same sex parenting there is still wide spread animosity and anger towards gay men wanting to have children. With more and more gay teens in the US committing suicide as a result of homophobic bullying (whether from their peers, parents, the community or the pulpit), there has never been a more important time to look at the whole notion of what a family is and what a parent is.