Part 2: When things go wrong.
In Part 1 of this blog series, I looked at why you should obtain legal advice before conceiving using donor gametes and how that affects legal parenthood. In Part 2 I will consider what happens if you discover after conception that something went wrong.
Legal parenthood not properly conferred
When conceiving through a licensed clinic as unmarried partners, whether same sex or heterosexual, it is vital that the relevant HFEA (Human Fertilisation & Embryology Authority) procedure is correctly followed. This involves the mother completing the HFEA ‘WP’ form giving consent to her partner being the second legal parent and the intended second legal parent (male or female) completing the HFEA ‘PP’ form, indicating consent to being the legal parent. These forms must be completed and signed before insemination.
What happens if they are signed after insemination or incorrectly filled out? Unfortunately, there have been cases where the clinics have been at fault in relation to these forms, resulting in legal parenthood not being conferred as was intended. Applications to court for declaration of parentage may be required and further legal advice will be needed.
Death
What if a parent dies during treatment? Different rules apply depending on whether the mother was already pregnant when the other parent died, or whether the embryo transfer takes place after the death of the second parent. In some circumstances the deceased is considered the child’s legal parent for all purposes, and in others the deceased is only considered the legal parent for the purposes of being named on the birth certificate and for no other reason, providing an election is made within 42 days of the child’s birth. The law is complex in this regard and advice should be taken swiftly if a parent dies before birth or conception.
Separation/Divorce
How child arrangements are dealt with upon a separation or divorce will depend upon the parents’ legal status. Where both parents are registered on the child’s birth certificate giving legal parenthood status to both parents, then the law is straightforward. If you are not able to agree on the child arrangements following a separation or divorce, then it is open for both parents to make an application to court for orders relating to where the child will live and the time they spend with the other parent.
The law is more complex when only one parent is the legal parent. In a same sex female couple, where they are unmarried and not in a Civil Partnership and the child has been conceived outside of a licensed clinic using donor sperm, then the second female has no legal status. But, having been involved in the child’s life up until separation, they will likely be considered by the child as that child’s parent. Legal advice should be sought to ensure that the second parent can continue to be in the child’s life. See our blog post HERE about a recent case where the second legal parent was granted a shared ‘lives with’ child arrangements order which also conferred upon her Parental Responsibility.
Child support
Only a legal parent can be pursued for child maintenance. Sperm donors who donate outside of a licensed clinic do not have statutory protection from financial responsibility towards a child they have conceived. Even where the parties have, for example, agreed that the sperm donor will not have financial responsibility, if the sperm was donated outside of a licensed clinic to a woman who is not married or in a Civil Partnership, and where that sperm donor is the legal father, then he can be pursued for child maintenance, despite the agreement. This is particularly relevant when, for example, a same sex female couple who are unmarried and not in a Civil Partnership separate. Here, the second female is not a legal parent and cannot, therefore, be pursued for child maintenance for a child they have brought up, leaving the birth mother to pursue the sperm donor.
Known donor/co-parenting disputes
When deciding on using sperm donation, you will have to consider whether to use a known or an unknown sperm donor. Using a known or an unknown sperm donor through a licensed clinic has its pros (medical screening, controlled usage, details included on the HFEA Register of Information (which includes non-identifying information about the donor which can be released at age 16 and identifying information which can be released at age 18), no legal parenthood) as well as its cons (if unknown, not knowing anything about the donor until the child can access identifying information at age 18).
Deciding to use a known donor outside of a licensed clinic, requires special consideration. Whilst you will know more about the donor (they could be a friend or relative who wants to help you build your family) there are different legal implications, as discussed in Part 1 of this blog series.
To avoid disputes as to the care of the child after birth, it is crucial that both the intended parents and the donor communicate openly and honestly as to their intentions. If it is agreed that the donor is simply to be a donor, with no ongoing responsibilities, then this agreement should be set out in a ‘known donor’ conception agreement document. If it is agreed that the donor is to have a co-parenting role after the birth, then a co-parenting agreement should be drawn up. Whilst both documents are not legally binding in the UK, they will enable all parties to consider what it is they all really want and to ensure that those desires are truly aligned and then those intentions are recorded. It may be that by having this open discussion at the outset, the parties may discover that their intentions do not align. If that is the case, then better to know before conception so that other avenues for family building can be explored before a child is conceived.
If, however, despite reaching agreement, a dispute arises after birth, then this may require an application to the court to determine what is in the best interests of the child. The written agreements that were put in place prior to conception will likely be considered by the court, although are not legally determinative. In addition, parenting disputes where there is a known donation agreement or a co-parenting agreement where there was never a romantic relationship between the biological parents are different to disputes involving parents in the usual family dynamic. This involves specialist knowledge of the way the court treats these different types of family set-ups and legal advice should be taken from specialist fertility solicitors.
Conclusion
If you are considering donor conception to start your family, please get in touch with us to discuss your specific situation. Understanding the different legal aspects of donor conception will assist you in making the right decisions for your family before the child is conceived and we can help you navigate any issues after the child is born.
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