Legal Paternity after Sperm Donation for Lesbians
Since 6 April 2009 (time of fertilisation, not birth) 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 on the page on legal paternity after sperm donation in the children section.
The best start to understand this complicated area of law is easy to follow flowchart on legal paternity under English law (opens PDF document).
This page highlights some issues affecting lesbians in particular.
- If the mother is married or in a civil partnership with a woman, her wife or 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 donation or co-parenting arrangement with a man unless she had sexual intercourse with the genetic father.
- If the mother and her partner are not married or 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 right 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 get married anyway, you may want to bring the wedding forward. However, you must be married at the time of the conception. Getting married during the pregnancy does not count.
Registering the Birth
If these conditions are fulfilled, the mother’s partner counts as “the other parent” of the child and she can be recorded as such on the birth certificate. If she is recorded on the birth certificate in England or Wales, she will also have parental responsibility, whether or not she is married to or in a civil partnership with the mother.
Nevertheless, issues could arise if one party, for example the biological father, alleges that intercourse took place. We have worked with couples to find ways of how they can best gather evidence to cover this and in case the registrar will ask questions.
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 the child cannot have three or more parents; nor can you legally agree on anything the law does not provide. The man can only be legally a father of the child:
- if the mother is not married nor in a civil partnership and
- the mother and her partner are not treated as a couple in a UK licensed clinic; or
- if the mother is in a civil partnership (or married) only if the mother and the father had sexual intercourse (or if the mother’s civil partner or wife did not consent).
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). to top of text
Please remember that if the genetic father does not count as the child’s legal father, he cannot be asked to pay maintenance nor make other financial provision; nor will he have automatic rights to have contact with the child. However, if he has had contact for any period, he may be able to apply to the court for permission to bring an application for contact as in the case of Re G (A Minor); Re Z (A Minor)  EWHC 134 (Fam).
When things go wrong
Various things can go wrong, which the court then has to untangle.
- A married woman whose husband had had a vasectomy found a sperm donor online. They met for artificial insemination, which did not succeed. They met regularly on a number of further occasions and the woman eventually got pregnant. Her husband had not consented to the insemination, although he had acquiesced in it. The court found that this did not count as consent so would mean that the donor was the legal father although he did not know whether the husband had consented or not. It is therefore essential that a sperm donor has evidence that the mother’s husband or civil partner consented. However, the court had to decide whether on the further meetings the mother had conceived through artificial insemination (as the donor said) or through sexual intercourse (as she said). The judge found that they had both been lying to him, but that they had had sex and the donor counted as the legal father of the child. It is therefore important that all parties have evidence that the conception was through artificial insemination and not sexual intercourse as so much depends on this. This is a real case: M  EWHC 1901 (Fam) (05 July 2013).
- A lesbian couple who were civil partners asked a gay man to donate sperm, which he did. He did not count as a legal father. He had some regular but limited contact with the child. The lesbian couple then decided that they did not want any more involvement of the biological father. The father applied for permission to bring an application for contact and got that permission. This is a real case: Re G (A Minor); Re Z (A Minor)  EWHC 134 (Fam).
- A lesbian couple went to a licensed UK fertility clinic and one of them conceived through insemination through the clinic. They had signed the forms necessary for them to be treated as a couple. However, once the court looked into it, it turned out the clinic had failed to explain the consequences of them signing these forms and the mother’s partner does therefore not count as a legal parent of the child; again a real case: Re: E & F (Assisted Reproduction: Parent)  EWHC 1418 (Fam).
For advice on your specific circumstances please contact a solicitor
18 May 2016 by Andrea Woelke