Legal Paternity after Sperm Donation

 

The Human Fertilisation and Embryology Act 2008 sets out who under English law are the legal parents of a child which is born after sperm donation or artificial insemination or other fertility treatment. This page has free information about the law which came into force on 6 April 2009. For opposite-sex married and unmarried couples there was no substantive change between the current law and the law under the Human Fertilisation and Embryology Act 1991.

The woman who gives birth to the child is always the legal mother of the child.

For the other parent, see our easy to follow flowchart on legal paternity under English law for a quick check (PDF).

paternity_chart

For the other parent, see our easy to follow flowchart on legal paternity under English law for a quick check.
Whether the biological (genetic) father is legally the father of the child or whether the mother’s male or female partner counts as the other parent of the child, depends on the following:

  • whether the mother’s partner agreed to the mother being inseminated or to any IVF treatment
  • whether or not the mother is married or in a same-sex civil partnership and between the following

Private Insemination Arrangements

Some women feel uncomfortable with not knowing who the sperm donor is, others may have found that a clinic will not treat them and others may find the costs daunting. A self-insemination kit can be bought by mail-order and the arrangement is quick and easy. There is no law in the UK against doing it yourself.

There is also the advantage that there is no invasive medical treatment, no drugs to take, no delay while sperm is frozen and the chances of conceiving with fresh sperm are apparently generally much higher, particularly with older women.

However, you need to remember that:

  • The law determining who the legal parents of the child are is strict and you cannot contract out of this.
  • The sperm will not be screened for infections including HIV.
  • You may have to try repeatedly and will need to meet the sperm donor each time.

The legal paternity depends on whether or not your arrangement falls into the conditions of section 35 (for opposite-sex couples) or section 42 (for same-sex couples) of the Human Fertilisation and Embryology Act 2008. The conditions of the law are that:

  • The mother is inseminated artificially, i.e. she has sperm placed into her (or other treatment in a clinic of course). So this does not apply if she has intercourse with the sperm donor.
  • The mother must be married or in a civil partnership at the time of the insemination.
  • For a mother in a same-sex relationship the insemination must have been on or after 6 April 2009. If it took place before then, the old law applies and the sperm donor is the legal father.
  • The mother’s husband, wife or civil partner consented to the insemination. The burden of proof is on the person claiming that he or she did not consent.

If these conditions are fulfilled, the mother’s husband is the legal father of the child or the mother’s wife or civil partner is the legal “second parent” of the child and they can be recorded as such on the birth certificate. For more information specifically for lesbian couples, please see the page in our Gay and Lesbian section on on legal paternity after sperm donation for lesbians.

The rules are strict – it is an either-or situation between the genetic father and the mother’s partner and you cannot legally agree on any other provision. If the case does not fulfil the criteria, the sperm donor counts as the father and the mother’s partner has no legal connection with the child – unless you create one through adoption or by obtaining parental responsibility for the partner. There is no choice and no opportunity for both the biological father and the mother’s partner to be parents of the child. A child can only ever have at most two parents under English law. The same law applies if you use a clinic abroad or mail order sperm or the like, irrespective of what the law of that country provides.

If your arrangement does not fall into these conditions, the sperm donor counts as the father. In that case, you should bear in mind that:

  • The mother could go to the Child Maintenance Service for child maintenance or apply to the court for further financial provision for the child.
  • The biological father could ask the court to allow him to spend contact time with the child, even if the mother does not agree.
  • There is no option of contracting out of these rights and duties.
  • If the mother still wants her partner to be the child’s father or second mother, the biological father has to agree to an adoption (and will no longer legally be the child’s father) or the court has to overrule the father’s objection, which it may not necessarily do.

Treatment in UK Licensed Clinics

If the artificial insemination takes place in a UK licensed clinic, different rules apply. The mother’s partner will legally be the father (if male) or the “other parent” (if female) of the child if:

  • the treatment took place in a clinic in the UK licensed by the Human Fertilisation and Embryology Authority, and
  • the partner did consent (and signed the consent forms at the clinic if they were not married or in a civil partnership with the mother) and
  • the sperm donor signed the forms as a sperm donor (rather than as the mother’s partner).

The clinic should explain to you what forms you need to sign etc. Again, there is no choice as such, although of course a woman who is neither married nor in a civil partnership could choose between being treated with the biological father as a couple or with her male or female partner as a couple or on her own. You will need to ensure all forms are signed, and you have both been explained the legal rights before any treatment. Otherwise, as in the case of Re: E & F (Assisted Reproduction: Parent) [2013] EWHC 141 the mother’s partner may not be the legal parent of the child. Unfortunately, there seem to have been a high number of cases in the last few years where the clinic did not explain the law to the patients properly and did not get the forms properly signed.

The rules apply whether the woman uses anonymous sperm from a donation through the clinic or brings along her own donor, for example a good friend, or her partner’s brother. Since donors can no longer remain entirely anonymous there is a shortage of donors in the UK. Therefore clinics are not averse to a woman bringing her own donor.

If you go to a clinic abroad, the same rules apply as for a private arrangement. If you have more complicated fertility treatment, such as IVF, or an egg donation is involved, the rules are exactly the same.

For female same-sex couples this law applies for any cases where the sperm, embryo or eggs were placed into the woman or she was artificially inseminated on or after 6 April 2009. For older children, the old law applies and although the sperm donor would not be the legal father if he signed the forms as a donor (but would if he and the woman went to the clinic as a couple), the mother’s partner would not legally be the other parent of the child.

A private clinic will no doubt make a charge, but you should weigh up the costs against potential future legal costs of having to go to court about maintenance or contact, which could cost £15-20,000 or more. Another advantage of using donor insemination through a licensed clinic is that it is screened for a variety of things including HIV. It will save the donor from having to explain that he has to miss several months of donations pending a health check if he happens to have had unprotected sex recently.

Please remember that if the sperm donor does not count as the child’s father, as such he will have no rights to have contact with the child as a parent. However, if the mother has involved the biological father in the child’s life, she cannot unilaterally later change that situation without the possibility of this being tested in the courts. As someone who is not legally a parent of the child, the biological father will need permission from the court to make an application or contact, but this was granted in the case of Re G (A Minor); Re Z (A Minor) [2013] EWHC 134 (Fam). If the donor is not the legal father he also cannot be asked to pay maintenance or make other financial provision, even if the court has made a child arrangements order for contact.

For advice on your specific circumstances please contact a solicitor

12 August 2015 by Andrea Woelke