What is the Law for Sperm Donors?
The law for sperm donors depends on the method of conception. For example if you help your recipient conceive through a clinic you will have no legal parental rights. However if you conceive by home insemination there is a chance you will be considered the legal father.
It is well documented that increasingly single women are making the decision to have a child without a partner but men too can decide to have a child without a partner.
There are a number of options available if you are considering having a child on your own such as:
Donor insemination and a co-parenting arrangement
Treatment at a licenced clinic
Home insemination
Surrogacy
Partial surrogacy
Full surrogacy
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DONOR INSEMINATION AND CO-PARENTING ARRANGEMENTS
Licenced Clinic
The conception could take place either at a licenced clinic or by home insemination.
The female carrying the child will always be the legal mother, whether her egg is used or a donor egg.
You will be considered the legal father of the child providing:
The woman is not married, in a civil partnership or in an enduring relationship;
You receive treatment with the female “together” and she does not receive treatment with another person;
You do not sign the relevant consents to exclude your status as the legal father.
Being the legal parent of a child does not give you parental responsibility for the child. You will need to obtain parental responsibility for the child be being on the child’s birth certificate, completing a parental responsibility agreement with the mother and registering it at the Principal Registry in London or by obtaining a court order.
Artificial Home Insemination
Again, as the female is carrying the child, she will be the legal mother of the child.
If the female is married or in a civil partnership then her partner will be considered the second legal parent of the child. If the woman is single then you will be the legal father, regardless of whether the insemination was by artificial means or not. You will be financially responsible for the child and will also have rights to the child.
You would not automatically acquire parental responsibility as you would need to be named on the birth certificate to acquire this. Alternatively you can enter into a parental responsibility agreement with the mother or apply to the court for parental responsibility. However, even if you do not have parental responsibility, you will still have rights in your capacity as the legal father.
As you are making a known donation it is important to regulate and agree the roles you and the mother will have in the child’s life. It is advisable that you put in place a “Sperm Donor Agreement” or a “Co-Parenting Agreement” (please see below for further information).
Sperm Donor Agreements
If you do not intend to be actively involved in the child’s upbringing it is advisable to draw up a Sperm Donor Agreement between you and the mother outlining how your sperm is to be used and what involvement, if any, you would like to have in the child’s life. A Sperm Donor Agreement is designed to protect you, the mother and the child.
Preparing a Sperm Donor Agreement is useful as it encourages you to consider all the issues that your arrangement can create. It is always advisable to consider all of the issues at the start so that any potential disputes can be avoided.
The following are some of the issues to consider and include in the agreement:
• Who will be named on the birth certificate
• What legal applications will be made after the birth, e.g. adoption orders
• Financial responsibility for the child
• Provision for future donations to provide for future siblings
• Whether the child should have a right to contact you
• Whether you have the right to contact the child
This list is not exhaustive and you may have other specific things in mind that you want to include in the agreement.
It is important to keep in mind that Sperm Donor Agreements are not legally binding in the UK as any dispute involving a child requires that the court consider the best interests of the child. However, if all parties take independent legal advice before entering into the Sperm Donor Agreement the court will give a great deal of weight to the agreement.
Co-Parenting Agreement
The term “co-parenting” is often used to describe a situation where two or more people, not in a relationship, decide to start a family and raise the child together.
If a co-parenting arrangement is envisaged then a co-parenting agreement should be made.
A co-parenting agreement is an agreement between all of the parents outlining how the child is to be raised. Preparing a co-parenting agreement encourages you to consider all of the issues that a co-parenting arrangement can create. It is always advisable to consider all of the issues at the start so that any potential disputes can be avoided.
The following are some of the issues to consider and include in the agreement:
• Who will be named on the birth certificate
• What legal applications will be made after birth, e.g. parental responsibility, residence orders
• Who the child will live with
• When the child will have contact with the other parent(s)
• Financial responsibility for the child
• Decision making during pregnancy
• Decision making once the child is born
• Provision for future siblings
• What happens if the relationship breaks down
This list is not exhaustive and you may have other specific things in mind that you want to include in the agreement.
Parenting agreements are not legally binding as any dispute involving a child requires that the court consider the best interests of the child. However, if all parties take independent legal advice before entering into the parenting agreement the court will give a great deal of weight to the agreement.
SURROGACY
Surrogacy is when a woman (the surrogate mother) agrees to bear a child for another and surrender the child at birth.
There are two types of surrogacy:
• Partial (also known as traditional or straight surrogacy) – this method uses the egg of the surrogate mother and either your sperm or donor sperm. This can be performed in an IVF clinic or by artificial insemination at home.
• Full (also known as gestational or host surrogacy) – this method uses a donor egg combined with either your sperm or donor sperm. In this case an IVF clinic is always required. A child conceived by this method has no biological connection to the surrogate mother.
Surrogacy and the Law in England and Wales
Although surrogacy is legal in England and Wales, it is restricted by various laws. For example, the Surrogacy Arrangements Act 1985 expressly forbids advertising for a surrogate or advertising to be a surrogate. A breach of this Act is a criminal offence punishable by a fine, imprisonment or both. It is also an offence to broker a surrogacy arrangement on a commercial basis.
Surrogacy agreements are unenforceable in the courts in England and Wales, even if a contract has been signed and the expenses of the surrogate have been paid. The family courts have, in practice, proved sympathetic to intended parents applying to enforce a surrogacy arrangement but they have a wide discretion to act in the best interests of the child which means there are no guarantees.
Who are the legal parents of a child born through surrogacy?
Under English law, the woman who carries the child is the legal mother. Therefore the legal mother of a child born through surrogacy is always, at birth, the surrogate mother.
If the surrogate is married or in a civil partnership, her husband/civil partner will be the legal father/second parent of the child unless he/she did not consent to the surrogacy treatment, irrespective of the biological relationships. This means that even if your sperm is used you have no automatic claim to legal parenthood even though you are the biological father.
The position is different if the surrogate mother is single or widowed at the time she conceives (or if her husband or civil partner does not consent to the arrangement). The surrogate will still be the child’s legal mother but if your sperm is used you will be the legal father.
If the surrogate is based abroad then her country’s laws will govern who the parents of the child are in that country, e.g. in some states in the US a pre-birth order can be obtained confirming that the intended parent(s) are the legal parents before the child is even born. This does not influence the UK position and so in the UK the surrogate will still be considered a legal parent.
Who Goes on the Birth Certificate?
Only the legal parents can be named on the birth certificate where the birth is registered in the UK. The surrogate mother will register the birth and she is recorded as the child’s mother.
If the surrogate is married, her husband is recorded on the birth certificate as the father. If the surrogate mother is in a civil partnership, her same sex partner is recorded as the second parent.
If the surrogate mother is single and your sperm was used you can be named on the birth certificate, although you must attend the birth registration in person together with the surrogate mother for this to happen. If you do not then only the surrogate mother will be on the birth certificate.
How Do you Obtain Legal Rights to the Child?
It is important to take steps after the birth to acquire parental rights and extinguish the legal parenthood of the surrogate, and where appropriate, her husband or civil partner.
Currently, single people cannot apply for parental orders as one of the criteria for obtaining a parental order is that you are married, in a civil partnership or in an enduring relationship.
There are alternative court orders that can be obtained and specialist legal advice should be sought. The most commonly sought orders are as follows:
1. Adoption
An adoption order terminates the parental status of the surrogate, and if relevant her husband or civil partner, and gives permanent legal parental status to the intended parent. This is therefore the closest alternative to a parental order.
However, if you are already the legal father then you cannot apply for an adoption order as you cannot adopt your own child.
If your surrogacy took place internationally then whether the adoption route is available to you will depend on the laws of the country where the surrogacy took place, e.g. if the surrogate is in California then State Law says that the intended parent (s) is the parent of the child. Therefore California will not co-operate with the UK to adopt a child that California holds as already being the child of the intended parent.
It is crucially important that you take specialist legal advice before commencing an international surrogacy arrangement as a single person as some of the requirements of the adoption process have to be carried out prior to the child being born. Failure to do so may unknowingly constitute a criminal offence.
2. Residence Orders
A residence order is a court order which primarily states who the child should live with. If you are granted a residence order then you will also acquire parental responsibility automatically. However, parental responsibility does not make you the legal parent of the child. In addition, a residence order does not extinguish the legal status of the surrogate mother (or her husband/civil partner if applicable).
In effect, parental responsibility gives you equal parental status to that of the surrogate when it comes to making important decisions about the child’s life and welfare, such as where they should go to school, medical treatment etc. You are unable to use your parental responsibility to the exclusion of the surrogate mother and all important decisions relating to your child should be made in consultation with your surrogate. This is something to keep in mind if you have a difficult relationship with your surrogate.
If you are already the legal father of the child then a residence order may be considered to ensure the child is to live with you.
3. Special Guardianship Orders
A special guardianship order is the middle ground between an adoption order and a residence order. Whilst a special guardianship order does not give you full legal parental status and does not extinguish the parental status of your surrogate, it does give you the power to exercise your parental responsibility to the exclusion of the surrogate mother and her husband/civil partner.
For tailored fertility law advice on your personal circumstances please contact Kimberley Davies at Lester Aldridge Law and say you are a member of Co-ParentMatch.com ([email protected])
Please click here for further information on Surrogacy Law.
Please click here for further information on Co-Parenting Law.
Please click here for further information on Sperm Donor Law.