Legal Paternity after Sperm Donation for Lesbians
Since 6 April 2009 lesbians in the UK are treated equally in law to heterosexual women when it comes to giving birth after sperm donation. The new law is found in the Human Fertilisation and Embryology Act 2008. The law is described in full in the children section. This page highlights some issues affecting lesbians.
In essence:
- If the mother is in a civil partnership, her civil partner is “the second parent” of the child (unless she did not agree to the pregnancy), In this case it does not matter whether the mother was treated in a fertility clinic in the UK or abroad, or whether this was an informal co-parenting arrangement with a donor unless she had sexual intercourse with the genetic father.
- If the mother and her partner are not civil partners, the partner will only be “the second parent” of the child if the mother became pregnant as a result of fertility treatment in a UK licensed clinic and she and her partner completed the forms accordingly.
It is therefore important that the mother is aware of the law in advance and chooses what is right for her. If you are, for instance, planning to be civil partners anyway, you may want to bring the registration forward. However, you must be civil partners at the time of the conception. Registering as civil partners during the pregnancy does not count. 
Registering the Birth
If these conditions are fulfilled, the mother’s civil partner counts as “the other parent” of the child and she can be recorded as such on the birth certificate. The first such children are likely to bewere probably born in January 2010 (other than any premature babies).
The Government have told us that:
- registrars will receive training,
- they must ask the necessary questions depending on the circumstances and what they are told,
- the registrars will presume the that child is a child of the civil partnership if the couple register the birth together and there would be no need to ask further questions;
- if there is doubt about whether the conception took place before or on or after 6 April 2009, a doctor’s letter may be required.
Nevertheless,we have come across cases where the registrar got the registration wrong. It is unclear what will happen in practice and you may decide not to leave this to chance. We are working with couples at the moment to find ways of how they can best gather evidence in case the registrar will ask questions. Please contact Andrea Woelke for detailed advice on your situation.
Co-parenting
If you are planning to co-parent with a man, you need to remember that 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 man can only be legally a father of the child:
- if the mother is not in a civil partnership (and unmarried) and
- no UK licensed fertility clinic carried out the insemination and the mother and her partner were treated as a couple; or
- the mother and the father had sexual intercourse.
It is important that the adults involved are all clear about their intentions and the law. For an illustration of how things can go wrong under the old law, 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).
Please remember that if the genetic father does not count as the child’s legal father, 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 advice on your specific circumstances contact Andrea Woelke: ring or email us.
February 2010
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© Andrea Woelke 2009
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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.