Fertility Law

When choosing to donate sperm or eggs, become a recipient or enter into a co-parenting arrangement it is vital that the correct legal advice is sought. The parties involved may have different views as to what level of involvement they have with the child and their parental and financial responsibility.

A legal donor or co-parenting agreement can help clarify intentions and would be helpful in the event of any future dispute.

  • Will there be any ongoing contact between the donor and the child?
  • Will the sperm donor be protected if he wishes not to have parental responsibility?
  • Will the co-parents name be put on the birth certificate?
  • Will the co-parent have parental and financial responsibility?

The status of whoever is the non-birth mother is more complex.  Following changes introduced by the Human Fertilisation and Embryology Act 2008, there are now different sets of rules depending on whether your child was conceived before or after 6 April 2009. 
Find out more about how the law applies to: 

  • Children conceived after 6 April 2009
  • Children conceived before 6 April 2009

Contact a recommended fertility law specialist for further details on this area. 

If you conceive with an unknown sperm bank donor, the donor has no legal status as a parent. However donor conceived children will have the right at age 18 years to access the HFEA register to gain information about their donor and any other conceived children through the same donor.

If you conceive with a known donor or co-parent (whether at home or at a clinic), the legal position is more complex and is dependant upon whether the recipients are married or in a civil partnership.

If you are conceiving with a known donor or co-parent, it is important to consider what legal status your child's biological father will have, and whether you need to take any steps to manage your situation.  The law is complicated, and depends on your status as well as your donor's. 

If you are married or in a civil partnership and conceive by artificial insemination, then you are entitled to put both your names on the birth certificate and would be the legal parents. This does not mean that the sperm donor could not make a claim to the court for contact. Each case would be considered on an individual basis, with the best interests of the child being paramount.

It is important to get a legal donor agreement in place to help prevent future disputes.

If you are both legal parents (either by law or through adoption), your donor or co-parent will not be your child’s legal father. This applies also to lesbian couples in civil partnerships conceiving through a clinic or at home (providing a legal donor agreement is in place). 

However, although the law is still emerging, it is possible that there may be some scope for a natural father who has no legal parental status to apply to court for rights in relation to your child, particularly if he has had involvement in your child’s upbringing as a co-parent.  There may also be scope for you to pursue him financially if he has in practice maintained your child.  

If you are not both legal parents, whether or not your known donor or co-parent is your child’s legal father will depend on the situation:  

  • If you conceived at home, the donor will be your child’s legal father. 
  • If you conceived through a licensed clinic, your known donor’s parenthood status may be excluded by the laws that govern licensed sperm donation, although the position will depend on your particular situation.   

If your known donor or co-parent is the legal father, he will be financially responsible for your child and your child will have rights of inheritance from him.  If he is not named on the birth certificate he will not, however, have parental responsibility.  
A known donor should be involved in any application that you make for adoption, although the extent of his say depends on whether he has parental responsibility. 

A written donor agreement concerning parenting will not bind the court, but it may be taken into account if a dispute arises. 
The weight an agreement is given - and its legal effect - will depend on the underlying law, your particular circumstances and the content of the agreement.  To be of the most value, a donor or co-parenting agreement should therefore be drafted according to your particular circumstances and with expert legal help, whether your goal is to exclude your donor’s responsibilities or to set out how you envisage a co-parenting relationship working.  

Fertility law specialists will help you prepare a written agreement and give further advice about your own personal situation, discussing with you how the underlying law applies, with a view to helping you to avoid pitfalls and manage your relationship successfully to avoid disputes arising.  The process of putting together a written agreement can also be useful in helping to flush out any mismatched expectations between you (which are often the cause of later disputes).  

Please contact a fertility specialist lawyer for further information and advice on written donor agreements..