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Informal conception arrangements – understanding the legal implications for parents, donors and children

Posted on 07 June 2018

Informal conception arrangements – understanding the legal implications for parents, donors and children

A recent Channel 4 documentary "4 Men 175 Babies: The UK's Super Sperm Donors" told the stories of four men who had collectively conceived more than 175 babies following informal donation of their sperm to women who had contacted them online, normally through social media.  Clive, 61 a retired teacher followed in the documentary, estimated that on average he made 14 donations monthly and had given a total of 500 donations to strangers.  The documentary highlights the growing trend of informal conception arrangements.

However, it is unlikely that informal donors and the mothers of the children are aware of the legal implications for themselves and the children.

Who are the Legal Parents?

Irrespective of any agreement that may have been reached between individuals in informal donor arrangements, the law determines who are a child's "legal parents" and who has "parental responsibility." 

The term "legal parents" refers to an individual's status which is relevant in respect of matters such as inheritance claims, nationality and financial responsibility. A child can only have two legal parents. Legal parenthood is distinct from parental responsibility which gives individuals the authority to make decisions about a child's care, including decisions in relation to medical care, education and religion.

It will always be the case that the birth mother is the child's legal mother. The determination of who is considered the child's second legal parent will depend on a number of factors, including whether the birth mother was married or in a civil partnership at the time of conception and the circumstances of the conception. In the situation of an "at home" conception, as opposed to conception taking place at a UK licensed clinic:-

  • A donor will not be considered to be the child's legal father, if he donates by artificial insemination to a woman who is married or in a civil partnership, as in those circumstances the birth mother and her spouse or civil partner will be the second legal parent.
  • A donor will be considered to be the child's legal father, if he donates by artificial insemination to a woman who is neither married nor in a civil partnership.
  • If conception occurs following sexual intercourse, the donor will always be considered the child's legal father, regardless of the birth mother's marital status.

What does it mean financially to be a child's legal father?

A legal father has financial obligations to a child in the event of a claim being made by the mother.  Therefore, even if at the time of conception the parties had agreed that the donor would have no financial responsibility for the child, this does not preclude the mother from making financial claims on behalf of a child following its birth for maintenance through the Child Maintenance Service, or, potentially applying for further provision (including for housing or capital provision for the child) through the court.

Who has parental responsibility?

If a donor is deemed to be the child's second legal parent, he can be registered as the father on the child's birth certificate, if this is agreed between the donor and mother.  This will result in the donor having parental responsibility.  If a donor is not deemed to be a child's legal parent, he cannot be recorded on the child's birth certificate and therefore, will not have parental responsibility. There are however other legal routes by which a donor, whether or not a legal parent, can obtain parental responsibility.

Is the donor entitled to have a relationship with the child?

Even if agreement is reached at the time of an informal conception arrangement that the donor will not play any role in the child's life, this will not prevent a court application later being made by a donor following a child's birth.  Disputes involving children born as a result of informal donor arrangements are now commonplace in the family courts and can result in protracted and difficult litigation during a child's minority.  Such applications will typically relate to what arrangements should be put in place for a child, including where a child should live and how their time should be spent with the legal parent(s) and donor.  A donor who is deemed by law to be a child's legal parent can automatically apply for such an Order.  If a donor is not a child's legal parent but is the child's biological parent, permission of the court must first be obtained before an application can be made.

Regulation

UK licensed clinics are legally required to comply with the rules prescribed by the Human Fertilisation and Embryology Authority which issues licences to the clinics.  These regulations impose a cap on the number of families which can be conceived using a single donor's sperm.  However, such rules do not apply to a donor who donates via an informal home arrangement. 

Informal conception arrangement can cause numerous legal issues for the parties involved, sometimes as a result of mismatched expectations at the outset.  Such arrangements should not be entered into other than on an informed basis so that all involved understand their potential future rights, responsibilities, obligations and status in respect to any child born to a mother.

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