Part 1: Legal Parenthood.
If you are considering building your family through donor conception, chances are you have already travelled a long road of infertility or perhaps you are a same sex couple where donor conception is something you have come to quite naturally. However you reach the decision to use donor eggs, donor sperm, both donor eggs and sperm or even a donated embryo, we set out below why it is imperative that you obtain specialist legal advice before conception.
When considering donor conception there will be many decisions to make, and these will have personal as well as legal consequences. Knowing and understanding those legal consequences is vitally important. Talking to a lawyer in the early stages of your donor conception journey will ensure that you make all the decisions which are right for you and your growing family.
Sperm donation: legal parenthood status when using licensed fertility clinics vs home insemination.
Engaging in fertility treatment is expensive. These costs may be prohibitive to you, leading you to consider the home insemination route. However, before making this decision, you should understand the legal consequences which flow from this, depending on your specific family set up.
The main difference between using a licensed clinic or home insemination as a solo mum, is the legal status of the sperm donor. When using a licensed clinic, the sperm donor (whether known or unknown) will not be a legal father to the resultant child. His name will not appear on the birth certificate and he will have no rights to be involved in the child’s life. He will also have no financial responsibility to the child. Essentially, the solo mum will be able to bring the child into her family without any concerns that the sperm donor will have any legal rights to the child.
The marital status of the solo mum is, however, important. The above scenario assumes the solo mother is unmarried. However, if the solo mother is married or in a Civil Partnership, then the law will treat her spouse or Civil Partner as the other legal parent unless it can be shown that the other legal parent did not consent to the insemination. Consider, therefore, whether insemination should commence after a divorce or dissolution or what evidence you have as to the spouse’s objection.
When the solo (not married or civil partnered) mother conceives using donor sperm at home, then the legal status of the sperm donor is different. In this scenario, the sperm donor will be the legal father to the resultant child, irrespective of any agreements reached to the contrary. This is because legal parenthood is set by law and not by intentions. As a legal father, therefore, the sperm donor would be able to make applications under the Children Act and would be financially responsible.
Some couples may put in place written agreements either as a conception agreement, or as a co-parenting agreement. Whilst this document is not legally enforceable, it is advisable to have discussions early on as to the intentions of the parties to ensure that those intentions align.
Same sex female couples: Married/Civil Partnership v unmarried/No Civil Partnership
The law changed on 6 April 2009 allowing a mother’s female partner to have legal status as a parent in much the same way as a father. However, there are differences, depending on whether the second female parent is married to or in a Civil Partnership with the birth mother or not.
If the same sex female couple are married or in a Civil Partnership, then the second legal parent will be the female spouse/Civil Partner and not the sperm donor, regardless of whether the insemination took place in a licensed clinic or at home. It is important to note that the parties must be married or civil partnered before conception (not birth) takes place. As the second legal parent is married or in a Civil Partnership with the birth mother, they automatically have Parental Responsibility for the child.
If the same sex couple are not married or civil partnered, then the second female may still become a legal parent provided that the insemination takes place in a licensed clinic and the correct forms and procedure are followed, which requires the requisite notice and consents to be given prior to conception. The second legal parent does not, however, have automatic Parental Responsibility but can acquire it by being registered on the birth certificate, or through an agreement or court order.
This route to legal parenthood for the female partner is not available if the insemination takes place at home, where the sperm donor will again be the legal father. In this situation, the second female partner has no legal status to the child, even though they may be the child’s psychological parent. Step-parent adoption would be a possible route to acquire legal parenthood status during a subsisting relationship with the birth mother.
Heterosexual couples: Married/Civil Partnership v unmarried/No Civil Partnership
Just as the law protects same sex female couples conceiving together using donor sperm, the law also protects heterosexual couples conceiving using donor sperm or donor eggs.
The woman who gives birth to the child, even if using donor eggs, will always be the legal mother.
The legal parenthood status of the intended father conceiving using donor sperm, is dependent on their marital status and whether a licensed clinic was used.
If married to the birth mother, he will automatically be the legal father with Parental Responsibility and will be registered on the birth certificate, whether the child was conceived using a licensed clinic or through home insemination. This presumption can be rebutted by the married man showing that he did not consent to the artificial insemination.
If the father is unmarried to the birth mother but the conception using donor sperm takes place in a licensed clinic, he will be the legal father provided the correct forms and procedure are followed. In this scenario, he does not acquire parental responsibility automatically. He can acquire it by being registered on the birth certificate, or through an agreement or court order.
If the child is conceived outside of a licensed clinic using donor sperm and the birth mother is unmarried, then the sperm donor will be the legal father and the intended father will have to consider stepparent adoption to acquire legal rights to the resultant child.
Single men and same sex male couples:
Single men or same sex male couples will require not only a donor egg but also a woman to carry the child. This involves surrogacy, which has its own legal consequences and which are not discussed here.
Legal parenthood can be complex, depending on the specific marital status of the parties involved and as to timing. Getting legal advice as to your specific situation before conception is, therefore, vital. In Part 2 of this series we will consider the legal advice you will need if something goes wrong.
For more advice on modern families, please contact our specialist in this area, Natalie Sutherland on firstname.lastname@example.org or 0203 880 9950.