My Lords, I understand why noble Lords would want to seek clarification on this aspect of the Bill, so I am grateful to the right reverend Prelate and other noble Lords who have amendments in this group. I echo what my noble friend Lady Barker said about the right reverend Prelate’s introduction to this debate, and I share his view that it is important that we consider children in the context of the Bill.
My noble friend Lady Barker made an important point about married same-sex couples providing stability and security for their children and this Bill therefore being a good thing for children of same-sex couples. That is something that we should ensure is not forgotten in the course of our debates.
Amendment 39, in the name of the right reverend Prelate, would remove paragraph 2 of Schedule 4, which makes clear that the common-law presumption often referred to as the presumption of legitimacy, that a child born to a woman during her marriage is also the child of her husband, will not extend to same-sex marriages. For the clarity of our debate, it is probably worth my reading out what it says in of the Bill, which is not very long:
“Section 11 does not extend the common law presumption that a child born to a woman during her marriage is also the child of her husband … Accordingly, where a child is born to a woman during her marriage to another woman, that presumption is of no relevance to the question of who the child’s parents are”.
This means that where two women are married to each other and one of the parties to that marriage gives birth to a child, the other party will not automatically be presumed to be the parent of that child. That provision does not change the current situation; instead, it clarifies what the legal position would be in terms of the common-law presumption. The presumption is about fatherhood, and the Bill does not change the law on fatherhood.
Amendment 39A in the name of the noble Lord, Lord Northbourne, which the noble and learned Baroness, Lady Butler-Sloss, spoke to, aims to ensure that both parties to a same-sex marriage have parental responsibility for children born to or adopted by that couple, and focuses particularly on the parental rights of the surviving spouse. I understand and share that objective, and I understand why we are having this debate and why clarity is sought. However, we believe that this amendment is unnecessary because the law already sets out specific criteria that must be met in order for same-sex couples to be treated as the legal parents and to have parental responsibility. So in order for me to reassure noble Lords, I will try to explain.
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For example, Section 42 of the Human Fertilisation and Embryology Act 2008, to which the right reverend Prelate has already referred, provides that a mother’s civil partner will be treated in law as the child’s second female parent if she consented to the mother’s artificial insemination. The 2008 Act will, as a result of this Bill, be amended to allow a mother’s same-sex spouse to be treated in law as the child’s second female parent in that situation and consequently to have parental responsibility. It would not be sensible for the law simply to presume that a second female parent is the
child’s legal parent, since the second female parent could not be the biological parent, and there are established processes for that second female parent to be treated in law as the parent and consequently to have parental responsibility. In certain circumstances, two men who are married can both be considered as the child’s legal parents and consequently have parental responsibility—for example, where both men have adopted the child.
The right reverend Prelate the Bishop of Guildford asked what would happen if a second female partner is not registered as a parent. Section 4A of the Children Act 1989 provides that a spouse or civil partner who is not the child’s parent or step-parent can obtain parental responsibility by agreement with the parent or by court order. It is our intention that this provision will help to avert unnecessary litigation and other claims about parenthood, which might otherwise arise as a result of a misunderstanding of the effect of the Bill. All that said, since this is a complicated issue, and because of some of the specific points that have been raised, it may be best if I write to the right reverend Prelate and to all noble Lords who participated in this debate and put a copy of that letter in the Library. Then I can provide in detail the reassurance that noble Lords are rightly looking for on this important matter.