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Creating a family via sperm donation is becoming an increasingly popular way for individuals and couples to start their journey into parenthood. The law in this area is not straightforward. It is important to flag from the outset that if you are considering using a sperm donor it will be vital that you obtain legal advice which is tailored to your specific circumstances.
There are various ways a sperm donor can be used, and each method has varying legal implications. The child’s birth mother will always be a legal parent with parental responsibility. In brief, anyone with parental responsibility for a child will need to be involved in important decisions regarding the child’s life until they reach 18 years old. This can include (but is not limited to), decisions about where the child should live, schooling, health and any property held by them during their minority.
It is crucial to be aware that if a child is conceived via sexual intercourse (or ‘natural insemination’) the biological father will always be considered the child’s legal father, regardless of whether they are recorded as the father on the birth certificate and irrespective of any agreement reached between the parents. In such circumstances, if the mother has a partner they cannot be the child’s legal parent even if they are the mother’s spouse or civil partner.
A legal father will be financially responsible for a child, meaning they can be pursued for child maintenance even when they have no involvement with the child. If a legal father is named on the child’s birth certificate, he will also acquire parental responsibility, giving him additional rights regarding decision-making for the child and a right to make applications to the Court in the event of a dispute.
In contrast, sperm donors giving samples via a licenced fertility clinic will not be legal fathers and are given protected legal status so that they cannot be held legally or financially responsible for a child conceived by their donation. A sperm donor who is not the legal father will require permission from the Court to pursue an application regarding the arrangements for a child.
This blog relates to the legal position on sperm donation in England & Wales. The law on sperm donation varies worldwide and the governing law will usually be in the country in which the child will be born.
Using an unknown donor via a licenced clinic is a popular option. There are strict rules and regulations regarding donors in respect of their health, medical history and age. Sperm donations will be screened for several conditions, including sexually transmitted diseases.
A sperm donor can request confirmation of the number of children born (including their gender and year of birth) as a result of their donation, but the identity of any child conceived or their mother will remain anonymous. Until the child reaches 18 years of age, the sperm donor is also anonymous but thereafter the child can request identifying information about the donor and any donor-conceived genetic siblings (via mutual consent).
An unknown donor will not be the legal father of any child conceived by their donation. The mother can choose to enter into an agreement for her partner to be a legal parent, regardless of whether they are married or in a civil partnership.
Another option is to use a known sperm donor via a licensed clinic, for example, a friend or non-blood relation. Finding a ‘known unknown’ donor, i.e. recruiting a donor online, comes with risks and is discouraged.
Most licensed clinics will require known donors to pass the same medical screening as an unknown donor, but the requirements regarding the donor’s age and sperm quality are generally less stringent.
Legal parenthood can become complicated when using a known donor. A known donor will not be the legal father if he donates to a couple who are both legal parents (i.e. if the couple are married or in a civil partnership, they will each become legal parents when the child is born). In circumstances where there is no other legal parent, for example, the donation is to a single mother or the mother is unmarried or not in a civil partnership, it is possible that the donor may become a legal father.
It is therefore vital to obtain legal advice when using a known donor via a licensed clinic ensuring the clinic’s paperwork is correctly completed and to consider entering into a donor agreement. Whilst donor agreements are not legally binding, they record the intentions of all those involved regarding the donor’s role and this can be useful evidence in the event of any difficulties or disputes. There have unfortunately been cases where the paperwork at the clinic have been completed incorrectly and legal parenthood not being given in line with the intentions of those involved. In such circumstances, further legal advice will be necessary.
The requirements for a known sperm donor via a licensed clinic to be anonymous are also applicable in this circumstance, however, they can be complicated by the personal relationships of those involved.
Using a known donor by artificial insemination at home does not provide the same level of medical screening as a licensed clinic. In this circumstance, a donor should be asked to provide detail of his medical history and undergo testing for sexually transmitted diseases.
The recent case of MacDougall v SW & Ors (sperm donor: parental responsibility or contact) , highlights the risks of using donors found online. In this case, the sperm donor was aware he had a genetic and inheritable condition, Fragile X syndrome (which causes a range of developmental problems including learning difficulties and cognitive impairment), which prevented him from being a sperm donor via a licensed clinic due to medical screening regulations. Within the Court’s judgment, the sperm donor was found to have failed to take responsibility for his medical condition, and to the long-term impact this potentially had on any children conceived by his donation. It is important to be aware of the potential risks involved when using a known donor outside of a licensed clinic.
Sperm donors who donate outside of a licensed clinic do not acquire the same statutory protection from financial responsibility towards any child conceived as a result of their donation. The mother and donor can decide between themselves whether the donor is to be considered a legal parent. They can choose to put the donor’s name on the birth certificate and doing so will make him a legal parent with parental responsibility, although this is not often the intention when using a donor and so they are often not named.
If the donor’s name is not on the child’s birth certificate, the donor does not become a legal parent and will not have parental responsibility. If you have a spouse or civil partner, they can be the legal parent and they should be named on the child’s birth certificate to give them parental responsibility. If you are unmarried or not in a civil partnership, your partner cannot be the child’s legal parent and will not be named on the birth certificate. In these circumstances your partner would need to adopt the child to become a legal parent, although they may be able to acquire parental responsibility.
It is unlawful to use an unknown sperm donor outside of a licensed clinic. For this reason, a licensed clinic will often not allow for sperm samples to be taken home for insemination.
The short answer is no, the donor has no rights or responsibilities towards the child in this situation.
However, the donor could make an application to Court for permission to make an application for a child arrangements order under the Children Act 1989.
A child arrangements order is an order specifying who a child should live with and/or how their time will be spent with each parent. When deciding whether to grant permission to make the application, the court will have particular regard to the following (section 10(9) The Children Act 1989): –
The role that the donor has played in the child’s life up to this point is likely to be a determining factor. If an applicant is granted leave to proceed with an application for a child arrangements order it does not necessarily mean that they will be successful. The chances of success in an application for a child arrangements order are highly fact specific and outside the remit of this blog, however, the child’s welfare will be the Court’s paramount consideration and the donor’s motivations for seeking parental responsibility will be a significant factor.
It would be an unusual set of facts where an application for a child arrangements order by a donor would succeed, but if you are concerned there are steps you can take to protect yourself against this type of application. For example:-
The more detailed your discussions, the better. Often a donor is a friend or (non-blood) relation, so this is a sensible thing to do in any case to preserve your existing relationship with them.
The decisions and steps made when using a sperm donor will have lifelong implications for both you and any child conceived. It is important to ensure your discussions with a potential known donor are open and honest from the outset and to be aware of any potential issues or misaligned intentions prior to conception. This will enable you to make informed decisions and consider alternative options before moving forward.
If you are considering using a known sperm donor either via a licensed clinic or at home via artificial insemination, it is vital to consider obtaining legal advice specific to your circumstances and to consider entering into a donor agreement recording the intentions of all concerned. If it is intended that the donor will have a role in the child’s life after birth, this can also be recorded in a parenting agreement/plan. Donor agreements and parenting agreements/plans are not legally binding, but will go a long way in ensuring positions are aligned prior to conception and if correctly drawn up will add a layer of protection in the event of any later dispute.
Charlotte Plowman is a Senior Associate Solicitor in Horsham and one of our dedicated team of specialists who are experienced in advising on modern family structures and the issues that can arise on creating them. Further details regarding our creating families team can be found here. Please do not hesitate to contact a member of our team for a confidential, no-obligation conversation.