# Maternity rights and parental responsibility for lesbian couples



## NatGamble (Mar 1, 2007)

Hi Natalie,

I hope you don't mind me sending you a PM but I'm not a charter member of the site so I can't post directly to the 'ask a lawyer' section. Do please feel free to post this question there as the answer might well be of interest to other couples on the site.

I'm 12 weeks pregnant with a child conceived through the help of a known donor. My partner and I are civil partners and once the child is born we'll be going through the relevant processes to ensure that R, my partner, has firstly parental responsibility and then becomes an adoptive parent. Our donor is not going to be involved in the upbringing of the child at all.

However, my main question isn't about that side of things (I'm sure I'll come to that before long) but about maternity/paternity/adoption leave. I'm self employed and my partner is employed in a senior post in the NHS so she is by far the greater wage earner. However, she has some real concerns about how well she'll be able to bond with the child given there's no biological relationship if she only gets two weeks off work after the birth. We've been trying to find out what her entitlements might be to paid leave, and wonder if she might be able to claim adoption leave or more paid paternity leave if we specify that she'll be the main carer for the child, at least for the first 3-6 months. I mostly work from home so in theory will be able to start work again quite soon after the birth and we'd be happy to forego my statutory maternity pay if it meant that she would be able to get a decent period of paid leave to allow her to care for the child while I work. From what we can gather, the fact that she'll essentially be a step-parent means that she won't be entitled to adoption leave, but if she were to be the main carer, would this change that?

I'm not sure if these are appropriate questions to be asking you, but we seem to be drawing blanks on our own research and would really appreciate any advice or guidance you might be able to offer.

On the side, we're based in Birmingham. Does your firm have anyone more local that might be able to assist us through the parental order/adoption process once our child is born, or even before the birth if that's possible. Or would you be able to work with us over a distance? If not, can you provide any recommendations for a more local firm. Knowing that whoever we work with has prior experience with same-sex couples is something we're quite keen on. And we've never done anything like this before so if you could let us know what normal practice is that would be great. Would we have an initial meeting to talk through everything? And what kind of charge would there be for this?

Thanks ever so much for giving your time to the site. It's really appreciated, by ourselves an many others.

Hoping to hear from you soon,

Gina.


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## NatGamble (Mar 1, 2007)

Hi Gina

Thanks for your PM (which I've posted here as requested for others to read) and congratulations on getting to 12 weeks!

It's an interesting question about maternity leave.  Again, it's an employment law question so outside my immediate area of expertise, but I'll ask Louise to have a look at it for you.  I'm sure it's something others will want to know too.

On the other side of things, have you and your partner given any consideration to putting in place some legal paperwork regarding your donor's rights?  It sounds from what you've said that your donor is to be just that, and not a co-parent, but the legal position can get complicated.

If you have gone through a clinic, there is a possibility of establishing that the donor is not legally the father (which will exclude his right to involvement and his financial responsibility for the child entirely), but whether the law applies to a known donor is a bit of a grey area so it can be helpful for all involved to sign a statutory declaration claiming that he is legally just a donor, if that is what you want.  

If you have home-inseminated, the donor will legally be the father which means he can be pursued for financial contribution by you, and could apply for parental responsibility even if you don't name him on the birth certificate.  Again, having some legal paperwork which says that you won't do these things could be important.

In both cases, such documentation is not strictly legally binding as you can't set aside a court's ability to act in a child's best interests, but it would be taken into account by a court if a dispute did arise.  More importantly on a practical level, I think it encourages everyone involved to be 100% clear about their intentions from the outset, which can in itself avoid problems arising later.

As to acquiring parental rights for your partner, for the best protection there is a three-stage process:

1.  During the pregnancy - you need to make a will appointing your partner as guardian for your baby.  That will automatically give her parental responsibility if something happens to you.  A morbid thought I know, but it's the only way of guaranteeing her right to care for your baby if you die in childbirth or shortly after.

As your baby will not legally be 'her child' until you have adopted, your partner also needs to make a will benefiting him/ her specifically, since your baby will otherwise have no inheritance rights from her if something happens to both of you.

2.  As soon as your baby is born - sign a parental responsibility agreement to give your partner immediate PR.  This gives her the right to act as a parent e.g. signing medical forms and school admissions.

3.  Once your baby is 6 months old - apply to adopt.  This gives her full parental rights for all purposes (inheritance, pension funds, family trusts etc).

I would recommend that you see a solicitor who specialises in this stuff as it can get quite complex, and I'm very happy to help.  Though I'm based in Bournemouth physically, I act for clients nationwide and often do things by phone/ email/ post.  I'm not aware of anyone in Birmingham who deals with this kind of thing - would be interesting to know if there are any!

I normally deal with situations like yours by having an initial meeting (face to face or by telephone/ video conference) after which I can draw you up some wills and a blank PR agreement ready for you to sign straight away after the birth.  The charge really depends on your circumstances (e.g. how complex are the wills?  do they involve tax planning/ trusts?  do you need a donor agreement? are we also looking at powers of attorney?) but I'd give you quote before we go ahead with anything.  To give you a ballpark, fees start at something like £700 plus VAT for both of you.  

We could then meet again after your baby is born to have a pre-adoption consultation, at which I can explain the adoption process and give you all the paperwork you need.  (Have to say, I love that bit, because I get to meet your baby!). 

I hope that's helpful.  Loads of luck with the pregnancy!

Natalie
[email protected]


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## Louise Gibson (Mar 10, 2007)

Hi Gina

Thank you for your post and apologies for not responding sooner. 

Subject to any variation in the employment contract, the basic provision is that as civil partners your partner should (subject to meeting the necessary qualification criteria) be entitled to paternity leave (up to two consecutive weeks’ leave at the statutory paternity pay rate) and parental leave.  For parental leave, depending on whether the employer has a policy in place, potentially you are entitled to 13 weeks’ unpaid leave per child, with a maximum of four weeks to be taken in any one year. 

Unfortunately on the information provided it does not appear that your partner could qualify for adoption leave or pay.  Also at present it is not possible to transfer any maternity leave or pay over to your partner.  The law is likely to change in this respect with the introduction of additional paternity leave, however this provision is unlikely to come into force until 2009/2010 and it is not certain how the rules will work at this stage.  

Please note that you may be entitled to more enhanced benefits under your employment contract, and you should carefully review your contract and employee handbooks.

The qualifying criteria and provisions for notice periods for entitlement to the parental and paternity leave are fairly complex and I would suggest that you either speak to your employer about their policies in relation to this or obtain further legal advice.  Further helpful information on this area can also be obtained on www.dti.gov.uk.

Best wishes and kind regards

Louise 
[email protected]


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