February marks LGBT+ History Month, with a number of events and initiatives planned to raise awareness of matters affecting the LGBT+ community, and to promote equality and diversity across our society. The recognition of relationships and pathways to parenthood are important issues for the LGBT+ community, and it is an area, I'm pleased to say, where some progress towards equality has been made.

Scotland, however, has not always been an inclusive country willing to recognise the rights of the community. It was only in 1981 that sexual activity between gay men was decriminalised in Scotland, and a formal pardon to men convicted of consensual sexual activity with other men was passed by the Scottish Parliament in 2018.

In recent times we have seen various milestones denoting progress for LGBT+ families, leading to Scotland being recognised in 2015 and 2016 as the best country in Europe for LGBT+ legal equality. Civil partnerships for same sex couples were introduced in 2005, and same sex marriage became lawful in 2014. Discrimination based on sexual orientation and gender reassignment has been outlawed since 2010.

Now, many pathways to parenthood are also available for LGBT+ individuals in Scotland.

LGBT+ individuals and couples can become foster parents and can adopt children. Statistics from the National Records of Scotland indicate that one in 12 adoptions in Scotland were to an LGBT+ couple in 2019, whereas only 5 of 466 adoptions were to an LGBT+ couple in 2010. The statistics also indicate an interesting gender divide, with more same sex male couples adopting than same sex female couples. At a time when Scotland is said to be experiencing an adoption crisis, many organisations have reached out to the LGBT+ community to encourage them to consider adoption.

Since the first child was born through intrauterine insemination (IUI) in 1978, it has been an increasingly common pathway to parenthood. Donor insemination can be achieved through a licenced clinic or at home, but the routes have different legal implications. Where treatment is carried out at a UK licenced clinic, both a birth mother and the other parent will be recognised as the child's parent if the parents are married or if unmarried couples complete forms of consent. The law allows the spouse or civil partner of the birth mother to be named on the child's birth certificate where the child is conceived outside of a UK licenced clinic. For unmarried couples, the partner of the birth mother would have to apply to a court for parental responsibilities and rights or to adopt the child to acquire formal recognition of their status as a parent. Scotland has recently permitted same-sex female couples access to funded IUI on the NHS.

The UK has seen a threefold increase in birth rates through in vitro fertilisation (IVF) since 1999. Mothers who pursue IVF can conceive using donor sperm and their own eggs or using donor eggs. NHS Scotland can fund up to three rounds of IVF for LGBT+ couples and females who meet certain criteria. For female couples, both can be legally recognised as the child's parents on their birth certificate.

Surrogacy allows those who, for medical reasons (including gender), are incapable of gestating a foetus to full-term or delivering a healthy baby, to have a child. Although the true extent of surrogacy numbers in the UK is unknown, statistics indicate that many more individuals and couples are turning to this method of starting a family.

Surrogates can be genetically related to the child (where the surrogate's egg is used) or the intended parents can use IVF to create an embryo which is then implanted into the surrogate. The first same-sex male couple was able to access NHS funded IVF treatment in Scotland in 2020, with the use of a gestational surrogate. Surrogacy is legal in the UK, provided it is done on a non-commercial basis. No payments, except reasonable expenses, can be made. Surrogacy currently requires one or both intended parents to apply to the court for a Parental Order after the child's birth to become the child's legal parents, though law reform is currently being considered by the Scottish Law Commission.

With a number of options now available, starting a family is something that is within the grasp of many more individuals and families in Scotland.

This article originally appeared in The Scotsman.


Garry Sturrock

Senior Associate