Donor conception: what is it and the legal issues you need to know

What is donor conception?

Donor conception is a path to parenthood whereby a person, the donor, donates their sperm, egg or an embryo, to the recipient parent(s), who receives the donation and follows the steps to conception using treatments such as in vitro fertilisation (IVF).

Why might you consider donor conception?

There are numerous reasons why people choose donor conception, for example:

• One person in the couple is not producing their own eggs or sperm
• Same-sex couples
• An individual who is single and wants to become a solo parent

Important questions

Those considering being involved in the donor conception process are likely to have a whole host of questions. Some of the most important include:

• Who will be the child’s legal parent(s)?
• Will the donor have a parental role and have any contact with the child, or be involved with decisions about the child’s life such as education?
• Will the donor have to provide financial support for the child?
• Will the child know who the donor is?

Who will be the child’s legal parents?

When a child is conceived using artificial insemination or the transfer of an embryo, the Human Fertilisation and Embryology Act 2008 governs who the legal parents are. The birth mother is always the legal mother even if the eggs have been provided by someone else. In the UK a child can only have two legal parents, and the question of who is the second legal parent is not straightforward, and can depend upon various factors such as:

• The circumstances of conception: where and how, and whether the donor is known or unknown. The law differentiates between conception at a licenced UK fertility clinic and conception at home or at a clinic overseas. For example, a sperm donor is not the legal father if he registers with a licenced UK fertility clinic and donates to unknown recipients.

• Whether the birth mother is married or in a civil partnership. Her spouse / civil partner is the second legal parent even if they are not the biological parent (unless it can be proved that they did not consent to the conception).

There are legal processes by which legal parenthood can be transferred.

It is vital that intended parents seek specialist legal advice prior to the child’s conception to ensure that those who intend to be the legal parents are recognised as such.

Will the donor have a parental role?

It is important to remember that legal parenthood is not synonymous with having parental responsibility. In the UK a child can only have two legal parents, but there can be more than two people who have parental responsibility for the child. Having parental responsibility means having the legal right to spend time with the child and be involved in important decisions about the child’s life and upbringing, such as education, medical matters, and religion. It is therefore essential that all parties seek specialist legal advice and that there is a clear understanding of who has (and who does not have) parental responsibility for the child.

The birth mother as the legal mother and named on the child’s birth certificate automatically has parental responsibility. The second legal parent may not automatically have parental responsibility. For example, in the case of unmarried parents, if the second parent is not named on the birth certificate, they do not have parental responsibility, and being named as the second parent on the birth certificate is optional and not mandatory; it may be necessary to apply to the court to obtain parental responsibility. Another scenario which can arise is that while the law protects a sperm donor from being deemed a legal parent provided he has registered at a licenced clinic in the UK and donated to an unknown recipient, he can apply to the court to obtain parental responsibility in respect of the child, meaning he may be able to spend time with the child and be involved in important decisions.

Will the donor have to provide financial support?

Again, this is not a straightforward issue, and it is crucial that all parties seek specialist legal advice. For example, a sperm donor who has registered with a licenced UK fertility clinic and donates to unknown recipients is protected from any legal claims pertaining to the child, such as child maintenance. However, if the conception is not undertaken at a licensed UK clinic – for example, if it is pursuant to a private arrangement – and if the woman is not married or in a civil partnership, the donor exposes himself to legal claims for maintenance.

Will the child know who the donor is?

Since April 2005 a donor-conceived individual can, at the age of 16, request limited information about the donor, for example physical description and ethnicity. At age 18 they can request identifying information including the donor’s name, date of birth and last known address.

Conclusion

It is essential for intended parents and donors to research all issues and understand the legal position by talking to a specialist lawyer. Parties should then agree upon the issues prior to conception and record the roles and responsibilities which each party will have in a Donor or Pre-conception Agreement. Whilst not legally binding, this document can be helpful in numerous ways: encouraging open and honest discussion of expectations, providing a guiding framework, and minimising the risk of future disputes.   

About Lucina Troy: A specialist Modern Families and Children Lawyer. In the Modern Families space Lucina advises individuals who want to create a family via an alternative path to parenthood, helping them secure, protect, and define the intended legal parent-child relationships. In the Children Law space Lucina undertakes a wide variety of work, including child arrangements and matters of parental responsibility, paternity testing, child maintenance and financial provision, child relocation, child abduction, injunctions and protective orders, disclosure orders, recognition and enforcement of foreign orders, breaches of orders and enforcement, and appeals. Lucina also speaks and provides workshops and seminars to Schools and Businesses, raising awareness and understanding about Modern Families and Children Law matters in schools and in the workplace.