Jersey’s milestone in birth registration

Last week, Jersey made legal history. After years of campaigning, the island’s law now allows same-sex couples to have both parents’ names on their child’s birth certificate.

The reform is more than symbolic. For years, same-sex couples in Jersey - whether conceiving through fertility treatment or surrogacy - could not both be legally recognised as parents from birth. The emotional toll was immense, as was the practical impact: the non-listed parent had no automatic parental rights or responsibilities. Now, not only can new parents register jointly, but families can retrospectively amend existing certificates.

Recognition of same sex female parents on birth certificates in Scotland

How does Jersey’s new approach compare to the legal position in Scotland?

In many respects, Scotland has been ahead of the curve in recognising diverse family structures. Since the Human Fertilisation and Embryology Act 2008 (“the 2008 Act”), female same-sex couples who conceive via licensed assisted reproduction can both be named on their child’s birth certificate - one as “mother,” the other as “parent”. This confers full parental rights and responsibilities from birth, provided the correct consents are in place. The law recognises the reality of modern families and, crucially, protects the child’s right to legal certainty and security. However, the 2008 Act is not retrospective, meaning families who registered births before the law changed cannot amend existing birth certificates to reflect both parents and the lived reality of their family life, leaving many same-sex parents and their children without full legal recognition.

Issues for same sex male parents for recognition on their child’s birth certificate

Despite significant progress in both jurisdictions, there remains a notable gap in the law. Male parents in same-sex relationships still face barriers to full legal recognition on their child's birth certificate. Where a child is born via surrogacy, one favoured pathway to parenthood for male parents, either one or potentially both fathers cannot be named on the original birth certificate at registration. Instead, the surrogate (as the birth mother) and, if applicable, her spouse or civil partner, are recorded. Only after a court grants a parental order can the intended parents obtain a new legal document: a parental order certificate naming them as parents. The original birth entry remains unchanged, and the new certificate is not a standard birth certificate. The same applies for adoption, another route to parenthood for same sex male couples. If granted, an adoption certificate is issued, and the original birth entry remains unaltered.

Whilst surrogacy and adoption are pathways to parenthood for all types of families, it starkly highlights the legal gap: there is currently no process that allows both male intended parents to be named on a child’s birth certificate, whereas female parents without a biological link can achieve legal recognition through established procedures associated with In Vitro Fertilisation (IVF) or Intrauterine insemination (IUI). For obvious reasons, the latter options are not available to cisgender male same sex couples.

Why is there a gender disparity as regards registration of same sex couples on a child’s birth certificate?

This gendered distinction is rooted in the law’s historic attachment to gestation and birth. The birth mother is always recorded, and the law has not yet fully adapted to the realities of surrogacy and modern parenthood. For female couples, the law has evolved to allow both partners to be recognised from the outset, provided conception occurs through licensed clinics and the correct paperwork is in place. For male couples, the process is more complex, since pathways to parenthood for them do not involve a gestational parent.

Future reform

The Jersey reforms are a milestone, but the journey is arguably far from over. Some advocate that the laws from Holyrood to St Helier should keep pace with society and modern family life. Achieving full and equal recognition for all same-sex parents may ultimately require further legal reform.

Contributor

Garry Sturrock

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