Earlier this week, I blogged about the gay man who twice donated sperm to help a lesbian couple have children, and who has now been ordered to pay child maintenance by the CSA.
Today I appeared on ITV This Morning alongside Mark Langridge, the man in the middle of this story, to discuss his circumstances and the law with presenters Eamonn Holmes and Ruth Langsford. I was pleased to receive a tweet from Child Maintenance Options, the free advice service provided by the Department for Work and Pensions, afterwards:
Here is Mark Langridge’s case in summary. The mother of his biological children was not in a civil partnership and not married. It is therefore the case that he is considered to be the legal parent along with the birth mother.
Back when both children were conceived, unless the conception had taken place at a licensed clinic, he would still be judged their biological and legal parent. That remains the case today. However, at that time the clinics were required to consider the desirability of a male being part of a child’s life and therefore many clinics were able to refuse treatment to single women or lesbian women with partners.
However the law has since changed in those respects and in others too. Civil partnerships and adoption by cohabiting couples – gay or straight – and adoption by couples in a civil partnershipwere all introduced into law in December 2005. In April 2009 the Human Fertilisation and Embryology Act (HFEA) 2008 also came into force. This permitted registration of same sex couples, in certain circumstances, as parents. Mr Langridge benefitted from none of these changes because the two women concerned never entered into a civil partnership, and never applied to adopt the children. The “second parent” never did acquire parental responsibility or adopt the children and was able to leave the relationship without liability to the children. So he remains in law, their father. Unfortunately, too, as I explained on the programme, the law cannot be applied retrospectively.
A child’s legal parents remain that child’s legal parents, even if the relationship between them subsequently breaks down.
If Mr Langridge were to donate sperm tomorrow, to two people who are married or in a civil partnership, then the birth mother and her civil partner or husband would be considered the legal parents of the child, not Mr Langridge. If, however, the arrangement remained a private one, taking place between a cohabiting couple, he would still be the father. Only if conception took place at a licensed clinic in accordance with the HFEA Code of Conduct would he be treated as a mere donor and not the father. He might however be identified as the donor father when a child reaches 16 because the clinic must disclose all details it has about him, and at 18 this includes his name and address.
As to the involvement of the CSA on the application of the mother, which caused Mr Langridge such concern, the Child Maintenance Group at the Department for Work and Pensions has contacted me this week, to provide further clarity on the legal position:
“The law has been updated to include new rights and responsibilities for same-sex couples who choose to have children together. If certain circumstances are met, both female partners can now be treated as the parents of a child – and therefore responsible for paying child maintenance after a separation.
“In those limited circumstances a man donating sperm to the couple should not be treated as the father for legal purposes. The case in question dates from before the legal changes in 2009, when only anonymous sperm donors at licensed clinics were exempt from being treated as the father. The changes in the law cannot be applied retrospectively.
“It is still vital that anybody considering sperm donation should take independent legal advice on the possible consequences of their actions.”
For additional information about donation and the law, visit the Stonewall website, which is an extremely useful resource for would-be donors and parents. A Guide For Gay Dads leaflet (PDF) can be downloaded here, with an excellent diagram on pages 26-27, setting out the various scenarios and their legal implications.