Family Law

In the ever evolving world of modern families, increasing numbers of clients are coming through our doors with questions about conception using a sperm donor.

Whilst altruistic sperm donations often fly under the radar, it is important for those considering sperm donation (both prospective parents and donors) to understand the legal position before they embark upon their journey.  Not only does it help each party to know where they stand, it also helps to prevent costly litigation further down the line. 

Who’s the daddy?

Anecdotally, it seems altruistic sperm donation from a sperm donor known to the prospective parents is becoming more common.  What is not clear is how many of those donations given with goodwill; lead to stressful legal proceedings, or at the very least parties feeling hurt and confused.

What most prospective donors and parents do not realise is that in the case of donation at home, the method of conception (either artificial insemination or intercourse) is crucially important from a legal perspective.  If the prospective parents are married or in a civil partnership, the deciding factor as to who is the second legal parent of the child (with the first being the person who gives birth to the child), is decided based on the means of conception.  This may be difficult to prove, either way, after the event, if it comes into question and could result in personal and private matters having to be explored in the court arena.  This is something that can lead to unnecessary stress and the potential loss of friendships; a time when parties should be enjoying their new baby, can be marred with litigation.

If the prospective parent is single, the position where conception takes place at home is always, without exception, that the sperm donor is the legal father of the child.  You cannot opt out! 

This is the case even if the donor is not named on the child’s birth certificate, which only affects the donor’s parental responsibility and not their status as a legal parent.

As a legal parent, the donor has a legal obligation to the child and can be required to support the child financially, even if this was not their intention at the time of conception. Leal parenthood allows the holder to make applications to the court with regards to arrangements for the child without requiring the court’s permission to do so. 

If however the intended parent (the person who is impregnated with the sperm) is married or in a civil partnership at the time of the conception then the donor will have no status as the legal father (provided conception was via insemination).

It is therefore imperative that all parties understand what their roles and responsibilities are, so no confusion arises.

Monetary cost v emotional cost

If the parties decide to donate through a licensed clinic, none of the above applies.  The donor (if that is what the parties expressly acknowledge him as being through the clinic process) will not be a legal parent unless it is agreed that he should be named as such.  Donation through a clinic simplifies matters, ensures treatment is safe, is regulated and shouldn’t leave anything open to interpretation, although of course there is a monetary cost to this.  In addition, for some people this option seems impersonal and more hassle, and therefore it is likely some people will always opt to go down the donation at home route, despite all of the legal implications and potential emotional cost.

What advice should we give to our clients considering sperm donation?

Given these potential issues with informal arrangements, how do the parties’ best safeguard themselves if they conclude that sperm donation is the best option for them?

1. Take legal advice early on – knowledge is power and in the case of sperm donation it can be the difference between a smooth process and protracted legal proceedings if everyone is not on the same page from day one.  It is essential that everyone goes into the process with the ability to make an informed decision.
   
2. Be clear about your intentions at the beginning – it is really important for all parties involved to be very specific about their position, so no disputes or confusion arises.  Each person’s expectations need to be understood and managed, so each person is comfortable with what is expected.
   
3. Prepere a donor agreement - set out each party’s intentions, obligations and any other information relevant.  Although not legally binding, the agreement can be demonstrative of the party’s position before conception.
   
4. Prepare a statement about the conception for all parties to sign - if donating to a couple, either married or in a civil partnership, preparing evidence about how conception occurred, should help prevent issues later down the line regarding the second legal parent and will make it difficult for anyone to challenge the method of conception.
   
5. Donate via a licensed clinic – although this option will be more expensive at the outset, it might be the option which provides the clients with the most certainty.