In February each year, we celebrate LGBT+ history month which raises awareness of and combats prejudice against LGBT+ people. The event was first held in February 2004 to coincide with the abolition of Section 28 of the Local Government Act 1988, which prevented local authorities and schools from "promoting the teaching of the acceptability of homosexuality as a pretended family relationship." Thankfully, our society has moved on since then and the legitimacy of LGBT+ family units is no longer in question in Scotland.
The struggles for same sex female couples to conceive a child with a biological connection
Stonewall and DIVA's 2021 LGBTQI+ Insight Survey in 2021 found that 36% of respondents who had children experienced barriers or challenges when starting their family. The most significant obstacle is the biological aspect of conception.
To conceive a child with a biological connection, same sex female couples usually require to rely upon assisted reproduction methods, such as intrauterine insemination (IUI or donor sperm insemination) or in vitro fertilisation (IVF). The reliance on medical intervention can add complexity, cost and potential emotional stress to the process as couples navigate fertility clinics, donor selection and treatment protocols. Further, as the Human Fertilisation and Embryology Authority explains, one in three pregnancies end in miscarriage, and there is a possibility that treatment might fail.
The options available to same sex female couples
Despite the challenges, IUI and IVF can in some cases offer a successful pathway to parenthood for many same-same female couples.
In Scotland, up to six cycles of IUI are funded for all couples, provided they meet nationally agreed criteria. After IUI treatment, between 1 and 3 cycles of IVF treatment can be funded in Scotland, depending on age and provided that they meet the NHS IVF access criteria.
In England, on the other hand, many regional health boards require female same-sex couples to self-fund at least six cycles of IUI before they are eligible for IVF treatment. In 2018, 70% of IUI cycles and 40% of IVF cycles for female same-sex couples were funded by the NHS in Scotland.
Parental responsibilities and rights
Same sex couples looking to start their family via assisted reproduction will need to consider the issues of parental responsibilities and rights. In Scotland, if you are in a civil partnership or same-sex marriage with a woman at the time they receive an egg donation, embryo transfer or donor insemination treatment, you can be granted parental responsibilities and rights over the child that is conceived.
Do donors have rights or responsibilities?
There is a responsibility upon donors to be open and honest about their medical history and that of their family. Donors do not, however, have any legal responsibilities towards any child created from their donation, including financial obligations. The person who receives the donation (and their spouse and potentially their partner) will be the child's legal parent(s). NHS Scotland will share with donors how many children have been born as a result of their donation, the sex of the children and the year they were born if they wish to know this information . NHS Scotland will not provide any identifiable information about the child or their parent(s).
What information is a donor-conceived child and their parent(s) entitled to receive about the donor?
When donating, donors provide non-identifying information on their registration form, which can be accessed by parents of a donor-conceived child at any time. This includes a physical description (height, weight, eye/hair/skin colour), their year and country of birth, their ethnic group (including that of the donor's parents), whether the donor was adopted or donor-conceived, if the donor had any genetic children (including the number of children and their gender), their occupation, religion, interests (if supplied), marital status at the time of donation, details of screening tests and medical history, skills, their reason for donating and a goodwill message for the future children and a pen portrait (donor's description of themselves).
When a donor-conceived child reaches the age of sixteen, they can apply to access the non-identifying information about their donor themselves. When a donor-conceived child reaches the age of eighteen, they can apply to receive identifiable information about their donor (including their name, date of birth and last known address).
How can we help?
At Brodies LLP, we have solicitors who are accredited by the Law Society of Scotland as child and family law specialists. We advise a diverse range of families on the different pathways to parenthood.
If you are considering starting your family via assisted reproduction, do get in touch.
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