Father's Day is held annually on the third Sunday in June. It is a day to honour a father, as well as fatherhood, paternal bonds and the influence of fathers in society.
There are many routes to becoming a father, including surrogacy and adoption.
Single male adopters and same sex couple adopters: overview
Since 2009 it has been possible for same-sex couples to adopt as a result of the Adoption and Children (Scotland) Act 2007, giving more men the opportunity to become fathers and for more children to find their 'forever' family. A single man is also able to adopt a child, regardless of his sexuality. Statistics from the National Records of Scotland indicate one in eleven adoptions in Scotland were to an LGBT+ couple in 2021.
Criteria for adoption
Under the 2007 Act, a 'relevant couple' may make an application for adoption. A 'relevant couple' means a married couple, civil partners or a couple that is living together in an 'enduring family relationship'. An 'enduring family relationship' is classed as two people who are in a relationship akin to marriage or civil partnership. The length of the relationship or financial interdependency will be relevant factors in assessing the overall strength of the relationship and the suitability of the couple to adopt.
The adoptive parent needs to be aged 21 or older and there is no upper age limit. The child being adopted must be under the age of 18.
Adoption agencies are legally obliged to treat all prospective parents fairly, regardless of their sexual orientation.
The adoption process
The adoption agency must prepare and publish a statement of the general criteria it applies when considering whether a person may be considered as a potential adopter. If the agency proceeds with an application, information is obtained from the prospective adopter, including a medical record. The home of the prospective adopter is also visited and inquiries made to ensure that there is no reason an adoption would be detrimental to a child. Once inquiries have been made, a report is submitted to the agency adoption panel. The adoption panel considers the child, prospective adopter and proposed placement for adoption. The panel then makes recommendations to the adoption agency including as to whether the adoption is in the best interests of the child and whether the prospective adopter is suitable. When making any recommendation, the panel must have regard to duties imposed on the adoption agency, which include the duty to safeguard and promote the welfare of the child; have regard to the child's views and child's religious persuasion, racial origin and cultural background. They must also have regard to the importance of a stable family unit on a child's development and the likely effect of the adoption on the child. Views of the child's parents and other relevant persons should be given appropriate weight and alternatives to adoption considered.
If the adoption is granted, the adoptive parents will obtain parental rights and responsibilities in respect of the child. This means the adoptive parents can provide a loving home and the support needed for the child to thrive.
More information regarding the law and process surrounding same-sex adoption in Scotland can be heard on the podcast 'What do I do if… I am adopting in a same-sex relationship' in which Garry Sturrock discusses the adoption process with Andrew Askew Blain who has been through the adoption process himself.
Surrogacy
Another route to fatherhood is via surrogacy.
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. The first same-sex male couple to access NHS funded IVF treatment in Scotland did so in 2020, with the use of a gestational surrogate. Currently, any surrogacy arrangement must be entered into on a non-commercial basis in the UK. As the law stands, the intended parents have no legal rights in respect of the child at the time of birth as the surrogate mother remains the legal parent of the child at the time of birth. The surrogate's spouse or civil partner (if she has one) may be the second legal parent.
Following the child's birth, the intended parent(s) must apply for a Parental Order from the court to have parental status transferred from the surrogate (and the second parent) to the intended parent(s). A Parental Order can only be applied for once the child has attained the age of 6 weeks and must be applied for within six months of birth. A joint application for a parental order may be made if the intended parents are married or in a civil partnership or 'enduring family relationship'. The consent of the surrogate is required for a Parental Order to be granted. Difficulties can, therefore, arise if the relationship between the surrogate and the intended parent(s) breaks down.
Surrogacy arrangements cannot be enforced in the UK as contracts. It is therefore important that intended parents and surrogates obtain independent legal advice prior to proceeding with a surrogacy arrangement.
An increasing number of individuals and couples are choosing adoption and surrogacy as pathways to parenthood. Should you wish advice in relation to an adoption or surrogacy, please do not hesitate to contact a member of our team.
See more of our LGBT+ family law services.
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Solicitor
