Sperm donation is an increasingly popular choice for couples and individuals looking to start a family when the traditional options aren’t available to them.  If this is something you are planning to consider, you need to be aware that the law in this area – and most specifically the question as to whether a sperm donor can be the legal father of a child in the UK – is not totally straightforward.

In this blog we’ll outline some of the key points around the legal rights of a sperm donor.  However, you should take legal advice tailored to your specific circumstances if you wish to progress pregnancy with a sperm donor.

In short, the Human Fertilisation and Embryology Act 2008 dictates who the legal parents will be.  The Act was created to protect the status of parents who conceive through donation, regardless of whether you are in a different sex or same sex relationship.

It’s also important to note that if you give birth to a child, you will automatically be recognised as the legal mother. No other person can be the legal mother even if they donated the eggs.  As the legal mother you:

• Can register the birth stating you are the mother on the birth certificate.
• Have full parental responsibility giving you the legal right to make the key decisions about your child’s care until they reach 18.
• Will have financial responsibility for the child.
• Have status rights with regards to nationality and inheritance and pension rights.

Can a sperm donor be the legal father in the UK if the donation is made through a licensed clinic?

The simplest answer is no.  In the UK a sperm donor cannot be the legal father of the child if they have donated through a Human Fertilisation and Embryology Authority (HFEA) licensed clinic.  If this is the case, the donor will have no formal legal obligations, rights, or financial responsibilities as regards the child nor will they be named on the birth certificate.

There are slight nuances depending on whether the donor is unknown or known to the mother.

If the donor is unknown, they cannot be the legal father of any child conceived by their donation.  Moreover, the mother can pursue an application for her partner to become a legal parent, regardless of whether they are married, in a civil partnership or in a same sex relationship.

The donor can request confirmation of the number of children born as a result of their donation although the identity of the children and their mothers will remain anonymous.  When the child reaches 18, they can request an identification of their biological father.

If the donor is known, legal parenthood can become a little more complicated.

While a known donor will not automatically be recognised as the legal father, if there is not another legal parent other than the mother (i.e. they are unmarried or not in a recognised relationship), the donor can become a legal father.  Similarly, while the anonymity requirements are the same as with an unknown donor, any existing relationship could muddy the waters.

This means it is important to take legal advice if you’re using a known donor via a licensed clinic as it may be best to enter into a donor agreement, so everyone’s intentions and responsibilities are documented in case of disputes later in the child’s life.

Can a sperm donor be the legal father in the UK if the donation is made via a private arrangement?

The situation is not as clear if the sperm has been donated via a private arrangement.  Following a private arrangement, there are several situations in which a sperm donor can be the legal father in the UK, for example:

• If the woman was in a recognised relationship with the donor at the time of conception.
• Whether the insemination was the result of sexual intercourse or artificial.
• If the donor is named on the birth certificate.
• Whether the parents have allowed the donor to establish a relationship with the child.

Agreeing the role your donor will have in your child’s life

If you know the donor, you may wish to come to an agreement as to the part the donor will play in the child’s life.  If may be that you’d prefer the donor has no contact with your child.  Alternatively, you may want them to be in the child’s life to some degree.  This can be documented in a  ‘donor’ or ‘co-parenting’ agreement.

A co-parenting agreement sets out the responsibilities of both parents and would outline the role the donor will play in the child’s life and their involvement in key decisions around housing, care, medical treatments and religions. 

There are definitely benefits in putting an agreement in place at the time of conception.  It will clearly set out everyone’s intentions, it will help avoid future disputes or misunderstandings and prove useful in settling a dispute if one were to arise in the child’s future.  It also offers some flexibility as the agreement can be reviewed and adapted over time.

However, these agreements are not legally binding.  They also won’t guarantee the donor’s role in the child’s life, his legal status or his financial responsibilities.  This means you must take legal advice before drawing one up.

What can the sperm donor do if they are not a legal parent and do not have parental responsibility?

If this is the case, the donor has no rights to claim responsibility for the child.  They can, however, ask the family court’s permission to make an application for a Child Arrangements Order under the Children Act 1989.  This order would specify where the child lives and with who and how much time they will spend with each parent.

To decide whether permission to make the application should be granted, the court will weigh up several factors including:

• The reason for the proposed application.
• The applicant’s current relationship with the child.
• Whether the Order would disrupt the child’s life in a harmful way.

Although the most relevant factor would probably be the application’s current relationship with the child, the child’s welfare will also be carefully considered.

While it is reasonably rare for a Child Arrangements Order by a donor to succeed, if you are worried that you may find yourself facing an application from your donor, there two things you can do to give yourself a little extra protection:

1. Make sure that you and your donor are clear at the outset about the role that he will play in the child’s life and document what you have agreed.

2. Discuss the type of relationship your sperm donor will have with your child and the information about the biological father you intend to share with the child.

If you are considering progressing a pregnancy via sperm donation and would like to discuss any of the issues raised in this blog, please contact us to arrange an initial conversation with one of our experienced family barristers.