What are the legal implications of using a known sperm donor?
More and more women are using sperm donors to get pregnant, often because they are in a same sex relationship or are single but feel ready to have a child. Anyone considering this route needs to be aware of two decisions which can have significant legal implications; whether to use a licensed clinic or ‘DIY’ insemination at home, and whether to use a known or unknown sperm donor.
These two questions are interlinked, as under the law you can only use an unknown sperm donor through a licensed organisation. It is unlawful for an unlicensed organisation to provide you with a sperm sample. Often, a licensed clinic will not allow you to take the sperm sample home to use, so you may find that the only way to use an unknown donor is at a clinic.
Within this blog the word ‘donor’ is used to refer to a man who has donated sperm for insemination. It is important to note that if a child is conceived via intercourse the biological father will always be considered the legal parent, regardless of whether or not they are named on the birth certificate. In these circumstances, the mother’s partner cannot be the legal parent of the child, regardless of whether they are married or in a civil partnership.
Using an unknown donor at a licensed clinic
Most women who use a licensed fertility clinic use unknown donor sperm. There are strict rules for the selection of donors which consider their health, personal and family medical history and age. Samples will be screened for a number of conditions, including sexually transmitted diseases.
The mother and any child conceived will be anonymous to the sperm donor, although they can request confirmation of the number of children born as a result of their donation, the children’s gender and years of birth.
Until the child reached the age of 18, the sperm donor is also anonymous although they will sometimes write a short paragraph about themselves to be made available after the birth. This can help the parents talk to the child about the donor in the future.
Once a child reaches the age of 16 they can request non-identifying information about the donor and any donor conceived genetic siblings. From the age of 18 they can request identifying information about the donor and any donor conceived genetic siblings (with mutual consent).
When a child is conceived using an unknown donor in a licensed fertility clinic, the donor is not a legal parent. The birth mother can enter into an agreement providing for her partner to be the other legal parent, regardless of whether they are married or in a civil partnership
Using a known sperm donor at a licensed clinic
It is possible to use a known sperm donor at a licensed fertility clinic and the donor can be a friend or non-blood relation; recruiting a donor through a website or recruitment agency can be risky and is discouraged. At a clinic, known donors will generally go through the same medical screening as an unknown donor but the requirements regarding age and sperm quality are generally relaxed.
A known donor will not be the legal parent of a child if the child is conceived through a licensed fertility clinic and the birth mother can enter into an agreement providing for her partner to be other legal parent, regardless of whether or not they are married or in a civil partnership.
Whilst a known donor is generally asked to agree to the same anonymity requirements as an unknown donor, the situation can be complicated by their relationship as a friend or family member with the parent/s.
Using a known sperm donor at home
Many women ask a close male friend or non-blood relation to donate at home. You will not have the benefit of the screening that a clinic would undertake so there needs to be trust between you. Ask your donor to produce his medical history and get tested for sexually transmitted diseases.
Whether or not the donor is considered the legal parent is down to you and your donor. You could choose to put your donor’s name on the birth certificate, which would make him the legal parent and give him parental responsibility. Often it is not intended for the donor to be the legal parent so the donor is not named on the certificate.
If you conceive using donor sperm and do not put the donors name on the birth certificate, they are not the legal parent and do not have parental responsibility. If you are married or in a civil partnership your spouse can be the legal parent; you should name them on the birth certificate and they will have parental responsibility. One important thing to bear in mind is that if you are not married or in a civil partnership with your partner and conceive at home using donor sperm, your partner cannot be the child’s legal parent and will not be named on the birth certificate. In these circumstances, the only way for your partner to become a legal parent of the child would be adoption, although they may be able to acquire parental responsibility.
My known donor is not my child’s legal parent and does not have parental responsibility– does he have any rights?
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. A child arrangements order is an order specifying who a child should live with and/or spend time. When deciding whether or not to grant permission to make the application, the court will have particular regard to the following (section 10(9) The Children Act 1989): –
- the nature of the proposed application for the section 8 order;
- the applicant’s connection with the child;
- any risk there might be of that proposed application disrupting the child’s life to such an extent that he would be harmed by it.
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.
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. Make sure that you and your donor are clear at the outset about the role that he will play in the child’s life. Discuss what information will be shared with the child and the type of relationship you envisage them having with the child. Will they spend time with the child regularly, with or without you, and will the donor’s family know the child. 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 in order to preserve your existing relationship with them.
Most disputes between parents and donors are based around a fundamental disagreement about what was agreed and envisaged at the outset. It is a good idea to record your intentions in writing and a specialist family solicitor can help you to draw up a comprehensive document. The agreement will not be legally binding, but should you have any difficulties in the future in can be useful evidence. It is likely to hold more weight if both parties have received legal advice and therefore understand their rights and responsibilities.
This is a complicated area of law and your decisions will have lifelong implications for you and your children, so I highly recommend that you seek specialist legal advice about your specific situation.