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Known donation on trial

20 February 2012
By Natalie Gamble
Natalie Gamble Associates
Appeared in BioNews 645
The family court has been making law on known donors, with a number of recent disputes between known sperm donors and lesbian mothers.

In one recent case (reported in BioNews 644), the Court of Appeal is considering whether a gay sperm donor should have a right to regular contact with his biological son, conceived with his ex-wife who lives with a female partner.

The adults had agreed verbally at the outset that the same sex couple would be the parents and that the man would not be involved in bringing up the child. The boy's mothers say they feel 'bitterness and betrayal' at his change of heart.

The case follows another recent decision by High Court judge Mr Justice Hedley awarding gay dads contact with two donor conceived girls, aged 10 and 6, following a long and bitter legal dispute with the children's lesbian mothers about their role (1).

What is interesting is the legal framework the court is developing for dealing with these kinds of issues, and how very different they are from traditional mother-father disputes.

How does UK law work?

UK law is, in theory, clear and certain about the parentage of children conceived through assisted reproduction:

  • The woman who gives birth is the only legal mother, and the egg donor's claim to motherhood is excluded.
  • Spouses (and since April 2009 civil partners) who conceive with donated sperm are both legal parents, and the donor is not the legal father
  • A sperm donor who donates through a licensed clinic as a donor (and not as a co-parent) is not the legal father, whatever the marital status of the recipient.

But known donation situations challenge the simplicity of these black and white rules. Where a donor is known to the family, he or she may be invited to play some kind of role in the child's upbringing. This happens frequently where solo or lesbian mothers conceive with a known sperm donor. But the nature of the donor's (or co-parent's) role can extend across a very broad spectrum from minimal contact to full co-parenting, with a million different shades of grey in between. There is obvious scope for dispute if the adults involved later disagree about the nature of that role.

The court's approach

The law in these situations is complicated, but any known donor can, as a minimum, ask to apply for rights of contact with the child. The UK family court has incredibly flexible powers and the child's welfare, rather than the wishes of the adults, is its paramount consideration.

In deciding such cases, the court will typically ask: What was intended at the outset and what is the current reality of the arrangement? What is the purpose of the proposed contact? Will it undermine the main family unit, and particularly the non-biological parent?

The trend of the case law seems to be heading towards drawing a broad distinction between known donation arrangements where the known donor gets limited 'identity contact', and co-parenting arrangements where the father has a more significant 'secondary parenting' role. However, every case is different and the court is typically concerned not to undermine the integrity of the primary family unit (usually the lesbian mothers). In practice, donors usually get a lot less than they are asking for and they will be disappointed if they expect to be treated simply as traditional separated fathers.

The significance of donor agreements

A key question is the extent to which the court will pay attention to any written donor agreement. Even if not legally binding, will it be given weight by the court? The recent case of the two donor conceived girls gives the strongest indication yet, Mr Justice Hedley noting that 'the court will be bound to give careful consideration and weight to any such agreement'.

However, what is perhaps most interesting is that not one of the cases yet heard by the court has involved a written donor agreement. This does not surprise me – in my fertility law practice I see how known donor disputes are almost invariably a product of mismatched expectations between those involved, with latent problems present from the very outset. The process of putting something in writing (however that is done) is the best insurance against a dispute, facilitating thorough and honest discussions about the role and status everyone will have.

I have, on one or two occasions, had clients who decided to abandon plans to co-parent after going through this process, deciding on reflection that they were better suited to a different route (usually sperm bank donation for lesbian mums, or surrogacy for gay dads). These are the cases, I am sure, where legal disputes have been narrowly avoided. 

Lessons learned

It would be a shame for anyone to think, as a result of these cases, that known donation arrangements are a bad idea or that those entering into them are reckless or foolish. I have over the years seen some wonderfully successful co-parenting arrangements, where children are nurtured with absolute transparency about their genetic heritage and a wealth of love and security from committed parents (usually more than two).

But known donation is not the right path for everyone. Where it goes wrong, it goes horribly wrong. I am sure that these disputed cases will not be the last - we are certainly dealing with more disputes of this kind than we were three or four years ago - and I am pleased that the court is developing a specialist jurisprudence which affords these situations the sensitive approach they deserve. In the meantime, anyone entering into a known donation arrangement would be sensible to pay heed to these cautionary tales, and to take on board the need to plan thoroughly, talk honestly and listen carefully, before they get pregnant.

1) P & L (Minors) [2011] EWHC 3431
British and Irish Legal Information Institute |  20 December 2011
27 April 2015 - by Ari Haque 
A man who provided sperm to a female friend who then used it to conceive without sexual intercourse has been awarded parental rights by the Virginia Court of Appeals in the USA...
19 August 2013 - by Haema Sundram 
The recent judgment handed down in the case of M v F and H [2013] on 5 July highlights difficulties with regard to legal parentage in cases of informal donor situations, which are not regulated by the Human Fertilisation and Embryology Authority (HFEA)...
11 February 2013 - by Richard Adams 
Re G (A Minor); Re Z (A Minor) 2013 (1) is a landmark High Court ruling in which, in the first known decision of its kind, two male sperm donors, known to the mothers, were granted permission to apply for contact with the children...
4 February 2013 - by Nina Chohan 
The UK High Court has granted permission to two sperm donors in a same-sex relationship to apply for contact with their biological children, conceived through a known donation arrangement with two lesbian couples....
24 September 2012 - by Tom Barrow 
The High Court has awarded a lesbian couple sole custody rights for a child conceived using donor sperm and a surrogate's egg after a three-year battle over parenthood...
13 February 2012 - by Dr Linda Wijlaars 
The Court of Appeal in the UK is hearing a case in which a gay man is fighting for greater parental access to his two-year old son he fathered with his lesbian ex-wife...
9 January 2012 - by Antony Starza-Allen 
A Florida court has granted equal parental rights to two lesbian women who created a child using the eggs from one of the women, while the other carried the baby to term. It ruled that egg donors may acquire parental rights to children resulting from their gametes under the Florida and US Constitution....
19 December 2011 - by Ayesha Ahmad 
Lesbian parents in South Australia who conceive through IVF can now both be registered on their child's birth certificate, after a new law passed to recognise female, same-sex couples as the co-parents of babies came into effect....
22 August 2011 - by Oliver Timmis 
An Australian court has ruled that a lesbian couple can have the name of the sperm donor removed from their child's birth certificate....
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