Legal Paternity after Sperm Donation

The effects on paternity of sperm donation and artificial insemination under English law are set out in the Human Fertilisation and Embryology Act 2008. This page has free information about the new law that 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 new 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 of female partner counts as the other parent of the child, depends on the following:

whether the insemination took place informally under a private arrangement or
at a licensed clinic in the UK and
whether or not the mother is married or in a same-sex civil partnership and
whether the mother’s partner agreed to the mother being inseminated or to the IVF treatment.

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 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. 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.

Mother in an Opposite-Sex Couple

For the husband of a mother in an opposite-sex relationship to be the father of a child 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:

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 at the time of the insemination.
The mother’s husband consented to the insemination. The burden of proof is on the person claiming that he did not consent.

Mother in a Same-Sex Couple

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:

As for heterosexual couples, 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 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 must be in a civil partnership at the time of the insemination.
The mother’s civil partner consented to the insemination. The burden of proof here is reversed, so she counts as the other parent unless it can be shown that she did not consent.

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. The first such children have already been born and been registered with the mother and the mother’s civil partner as parents on the birth certificate.

It is unlikely that on the registration of the birth of a child to a married copule there are any problems because when they come to the register office to register both as the parents of the wife’s child, the registrar has no idea whether the child was born following intercourse of the couple or after artificial insemination. When two lesbian civil partners come to register their child, it is clear that the child could not have ordinarily been conceived naturally by the couple and the situation may not be quite as straightforward.

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, 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 Support Agency 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 wants her (future) partner to be the child’s father or second mother (or her male partner to be the father), 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.

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).

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 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 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.

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 probably 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 cases, 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 the woman and him 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 may only require the man to donate sperm once or a few times in a row and will save him 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, nor can he be asked to pay maintenance or make other financial provision.

For further details of how the change in law in April 2009 affects lesbian couples, please see the information about legal paternity after sperm donation in the gay and lesbian section of our website.

For advice on your specific circumstances contact Andrea Woelke: ring or email us.

October 2010

Alternative Family Law

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