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Sperm donation, an emerging legal minefield?

Family|Surrogacy | 12 Jan 2021 0

What is the law regarding sperm donation? 

Now living in a third lockdown, the far-reaching effects of the global pandemic on family life were highlighted in recent research (commissioned by Stowe) which revealed that 61% of single women surveyed said they were worried about their chances of having a family due to Covid-19.

Of these, almost half said they were now considering technology-aided conception methods, which they would not have considered pre-pandemic, with the most popular choice being egg freezing, followed by IVF, sperm donation, surrogacy and platonic pregnancies respectively. 

This interest is reflected in a reported rise in women conceiving with technology, particularly egg-freezing and sperm donation; however, these techniques do come with (often unknown) legal implications. 

Hollie Orgee, Senior Solicitor at Stowe Family Law in Birmingham, joins us on the blog to look at the legal minefield that comes with using sperm donation as a way to start or grow your family and explain what the law is regarding sperm donation?

Whilst altruistic sperm donations often fly under the radar; it is important for people considering sperm donation (both prospective parents and donors) to understand the legal position before they embark upon their journey.  Not only does it help each party to know where they stand, but it also helps to prevent costly litigation further down the line.  

Who’s the daddy?

Anecdotally, it seems altruistic sperm donation from a sperm donor known to the prospective parents is becoming more common.  

What is not clear is how many of those donations given with good-will, lead to stressful legal proceedings, or at the very least parties feeling hurt and confused.

Conception at home 

Most prospective donors and parents do not realise that in the case of donation at home, the method of conception (either artificial insemination or intercourse) is crucially important from a legal perspective.  

If the prospective parents are married 

If the prospective parents are married or in a civil partnership, the deciding factor as to who is the second legal parent of the child (with the first being the person who gives birth to the child), is decided based on the means of conception. 

For example, if conception is via insemination, the donor will have no status as the legal father.

If the prospective parent is single 

If the prospective parent is single, the position where conception takes place at home is always, without exception, that the sperm donor is the child’s legal father.  You cannot opt-out of this. 

This is the case, even if the donor is not named on the child’s birth certificate, which only affects the donor’s parental responsibility and not their legal parent status.

What does legal parenthood mean?

As a legal parent, the donor has a legal obligation to the child and can be required to support the child financially, even if this was not their intention at the time of conception. 

Legal parenthood allows the holder to make applications to the court regarding arrangements for the child without requiring the court’s permission.  

Therefore, all parties must understand what their roles and responsibilities are, so no confusion arises.

Conception through a licensed clinic 

If the parties decide to donate through a licensed clinic, none of the above applies.  

The donor (if that is what the parties expressly acknowledge him as being through the clinic process) will not be a legal parent unless it is agreed that he should be named as such.  

Donation through a clinic simplifies matters, ensures treatment is safe, is regulated and shouldn’t leave anything open to interpretation, although there is a monetary cost.  

In addition, for some people, this option seems impersonal and more hassle and people will still opt to go down the donation at-home route, despite all of the legal implications and potential emotional cost.

Top tips for people considering sperm donation

Given the potential issues with informal arrangements, how do the parties’ best safeguard themselves if they conclude that sperm donation is the best option for them?

Take legal advice early on

Knowledge is power, and in the case of sperm donation, it can be the difference between a smooth process and protracted legal proceedings if everyone is not on the same page from day one. 

It is advisable that everyone enters the process aware of the legal implications so that they can make informed decisions.

Be clear about your intentions from the beginning 

It is essential for all parties involved to be very specific about their position, so no disputes or confusion arises.  

Each person’s expectations need to be understood and managed, so they are comfortable with what is expected.

Prepare a donor agreement

This agreement will set out each party’s intentions, obligations and any other relevant information.  Although not legally binding, the agreement can be demonstrative of the party’s position before conception.

Prepare a statement about the conception for all parties to sign

When donating to a couple, either married or in a civil partnership, preparing evidence about how conception occurred, could help prevent issues later down the line regarding the second legal parent if they arise. It will also make it difficult for anyone to challenge the method of conception.

Donate via a licensed clinic 

Although this option will be more expensive at the outset, it does provide people with the most certainty.

Get in touch 

If you would like any advice on understanding what is the law regarding sperm donation and other areas of fertility law, please do contact our Client Care Team to speak to one of our specialist fertility lawyers here. 

Hollie Orgee is a fertility law and surrogacy law specialist at Stowe Family Law. She offers a personalised approach to help her clients to build or extend their family whether that be with the assistance of a donor, or through surrogacy, both in the UK or overseas.

Hollie is a Senior Solicitor who focuses on complex children act cases, often with an element of physical/emotional abuse, including parental alienation along with adoption, surrogacy and cases with an international element.

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