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Human Fertilisation and Embryology Authority

Flowchart on legal paternity under English law (opens PDF document):

Click to open PDF of Paternity Chart

Legal Paternity after Sperm Donation



The Human Fertilisation and Embryology Act 2008 sets out who under English law the legal parents of a child are 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. As far as opposite-sex married and unmarried couples are concerned there is no substantive change between the current law and the old law as it was under the Human Fertilisation and Embryology Act 1991.

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

Whether the biological father is legally the father of the child and whether the mother’s male or female partner counts as the other parent of the child, depends on the following:

See our easy to follow flowchart on legal paternity under English law for a quick check (opens PDF document):

Click to open PDF of Paternity Chart

Private Insemination Arrangement

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 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. If it does, the mother’s husband or civil partner will be the child’s father or second parent and the biological father has no legal connection with the child. If it does not, 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. to top of text

Mother in an Opposite-Sex Couple (Private Arrangement)

For the husband of a mother in an opposite-sex relationship to be the father of a child born after a private arrangement who is not biologically his, under English law the conditions set out in section 35 of the Human Fertilisation and Embryology Act 2008 must be fulfilled:

Mother in a Same-Sex Couple (Private Arrangement)

The law is now effectively the same as for married couples. To meet the conditions of section 42 of the Human Fertilisation and Embryology Act 2008, the following must be fulfilled:

If these conditions are fulfilled, the mother’s civil partner counts as “the other parent” of the child and 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 legal paternity after sperm donation for lesbians.

The rules are strict – it is an either-or situation between the man and the mother’s partner and you cannot legally agree on any other provision. 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:

For an illustration of how things can go wrong, please see the views of the biological father in a specific case (“Sperm donor to lesbian couple forced to pay child support”, The Guardian, 4 December 2007) and of the mother (“Lesbian mother hits back in row over donor's support payments”, GuardianUnlimited, 4 December 2007). to top of text

Licensed Clinics

If the artificial insemination takes place in licensed clinics in the UK, 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 clinic will explain to you what forms you need to sign etc. Again, there is no choice as such, although of course the women 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.

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 lesbian civil partners and 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 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.

Contact a number of clinics and find out their attitude. If you find friendly clinics, let us know.

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 having to face 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.

For advice on your specific circumstances contact Andrea Woelke at Alternative Family Law: ring us on 020 7407 4007 (+44 20 7407 4007 from abroad) or email us (stating your full name, the full name of the other person in your case and your telephone number on which we can call you).

Please note that we do not have a contract to take on cases on legal aid. To check if you may be able to get legal aid please go to this government website and contact a solicitor who has a legal aid contract.

July 2013

See also: Parenting Arrangements for Lesbians and Gay Menright


Disclaimer

This is an outline of the law, practice and procedure in England and Wales. It should not be taken as specific advice. All families and couples are different. The law may have changed since this was written and we therefore accept no liability for inaccuracies. Where examples are given, your personal circumstances may vary slightly, but the difference may be significant for the outcome of the legal process. Contact us for specific advice on your own circumstances.

We take no responsibility for the content of any web pages linked to outside Alternative Family Law.