Whilst much of the legal conversation around LGBTQ+ parenthood focuses on access to assisted reproduction, surrogacy and adoption, there is a deeper, structural question to be explored: how do our laws reflect the reality of family life today?
More specifically, how do societal and legal norms around birth registration, parental rights and responsibilities (PRRs), and family structure impact those who do not fall within the traditional nuclear model - trans parents, stepparents, non-binary carers, and those in polyamorous or blended families?
Birth Registration: a system rooted in tradition
One of the first official acts of parenthood is registering the birth of a child. In Scotland, the Registration of Births, Deaths and Marriages (Scotland) Act 1965 provides the framework, requiring the registration of every live birth and the inclusion of details relating to the child's parents.
Currently, the birth registration system presumes a binary parental model: one “mother” and one “father or other parent.” Whilst in some cases the wording can accommodate same-sex couples - for example, where a second female parent is recorded as “parent” - the registration system does not easily account for non-binary or transgender individuals whose gender identity may not align with traditional parental labels. A trans man who gives birth is still recorded as the child's “mother,” irrespective of his gender identity. Non-binary parents face barriers within the current birth registration system, which remains prescriptive in its categorisation of parental roles. The available designations - "mother" and "father/other parent" - are gendered and binary, leaving no space for a parent whose identity does not conform to these definitions.
This can create legal dissonance. For many, being mislabelled on a legal document undermines their identity and, to them, it reinforces outdated assumptions about who can be a parent and how parenting roles are defined. It also raises difficult practical questions - what terminology should be used in legal correspondence, in school records, and in medical contexts?
Trans parents and legal recognition
In Scotland, the Gender Recognition Reform (Scotland) Bill - though passed by the Scottish Parliament - was blocked by the UK Government. But even under the existing Gender Recognition Act 2004, a person who obtains a Gender Recognition Certificate (GRC) is legally recognised in their affirmed gender. However, this legal recognition does not retroactively change parental designations on birth records. A trans woman who was previously recorded as “father” will remain so on her child’s birth certificate, regardless of her legal gender.
Stepparents, PRRs and the limitations of legal parenthood
The traditional model of family law in Scotland, as set out in the Children (Scotland) Act 1995, centres around parental responsibilities and rights (PRRs). These confer upon individuals the legal authority to make decisions about a child's upbringing, welfare, education and health.
In many LGBTQ+ families or polyamorous households, caregiving roles may be shared by one or more adults who have no formal parental responsibilities and rights in respect of the child. A stepparent - whether in a heterosexual or same-sex relationship - may take on a primary caregiving role but have no legal standing in important matters. If the biological parent dies or becomes incapacitated, the child’s relationship with the stepparent may be legally invisible. Acquiring PRRs through a court application is possible, but not automatic, and many carers are unaware of the benefit of doing so.
Polyamorous families
Polyamorous families - those involving more than two committed adult partners - whilst relatively rare, remain almost entirely invisible under Scottish family law. The law continues to operate on a model that largely presumes two parents per child, despite the reality that some children are raised in households with more than two caregivers.
For example, a child raised by a lesbian couple and their male coparent, or by a married couple and their partner in a polyamorous triad, may view all adults as parental figures. However, only two of them are likely to have PRRs or be recognised as parents legally. This limitation can cause practical and emotional difficulties in situations involving schooling, medical care, or inheritance.
Rethinking the definition of family
The legal system in Scotland has made great strides in recognising same-sex relationships and supporting LGBTQ+ families. However, birth registration remains binary and legal parenthood is often restricted to biology or traditional marital models. Internationally, jurisdictions such as Ontario, Canada, are set to recognise the nuanced, diverse and modern configurations of family life by allowing for more than two legal parents. Whatever the direction of travel for modern families in Scotland, the best interests of the child should remain front and centre.
For more information about our LGBTQ+ family law services, please get in touch with a member of our team.
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