If you are conceiving with a known egg donor, then the woman who carries the child – and not the biological mother – is the child’s legal mother for all purposes.
If you are conceiving with a known sperm donor, you need to take extra care as the law is often very complex, and can be black and white in the way it works. This can often, for example, lead to a known sperm donor being treated in law as your child’s legal father and having financial responsibility (unless you and your partner are married or civil partners or you conceive through a licensed HFEA clinic).
There are a number of reasons why people choose to conceive with a known donor. Typically (although not always) those entering into known donation arrangements plan to have a degree of involvement with their donor after their child is born, although this is usually restricted to a limited role (for example with a donor acting as an uncle figure). If you are planning a more equal parenting role with your donor, see the section on co-parenting.
Your legal position as your child’s parent/s depends on your personal situation:
- If you are a married couple or lesbian civil partners (at the time you conceive) then you will normally both be treated as your child’s legal parents and can both be named on the birth certificate (either as mother and father, or as mother and parent). This will legally exclude your sperm donor’s legal status as the father.
- If you are an unmarried heterosexual or non civil partnered lesbian couple (at the time you conceive) then your sperm donor’s status will depend on how you conceive. If you conceive with a known donor at a licensed clinic in the UK, you can choose for the mother’s partner to be treated as your child’s second parent. This means that your donor will not be your child’s legal father. If you conceive through home insemination then your known sperm donor will be your child’s legal father. If you then want to acquire status for the non-birth mother or the non-biological father you will need to go through a court process to acquire adoptive or other rights.
- If you are a single woman conceiving with a known sperm donor at a licensed clinic in the UK, it may be possible to establish that your donor should be treated in the same way as any other clinic sperm donor (although his status is not necessarily excluded automatically just because you conceive at a clinic). If you conceive through home insemination, your donor will be your child’s legal father.
A lot of confusion arises over birth certificates. Choosing to name a known donor on the birth certificate is legally significant, since it gives him ‘parental responsibility’ (the authority to be involved in important parental decisions). However, even if a donor is not named on the birth certificate, then he may still be your child’s legal father and may still be financially responsible for your child.
A donor agreement may to help manage the legal issues associated with known sperm donation. While a donor agreement is not strictly legally binding, the process of putting an agreement in place can be helpful in managing everyone’s expectations and may be of evidential benefit to a court dealing with any dispute.
The law on known sperm donation is complicated and it is important that you understand how the following questions would be answered in your particular situation:
- Who will be treated as your child’s legal parents?
- What should be recorded on your child’s birth certificate?
- Should you put in place a donor agreement?
- How can you best manage your relationship over time so as to avoid difficulties arising?
For more information, visit Natalie Gamble Associates' pages on donor conception law.