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.
The judge emphasised he took a fact-specific approach to the application and a hearing on the whether the men will have a right to contact the children is yet to take place. Nevertheless, the ruling may have implications for men who have acted as known sperm donors and have no legal parental status.
The parties, who were acquainted with each other at the time of the home insemination procedures, are all in civil partnerships. One of the men is the biological father of two children with one lesbian couple. The other man is the biological father of one child with a second lesbian couple.
The men were originally permitted to have contact with the children until their relationship with the couples began to deteriorate when both men requested to have more involvement in the children's lives. It was at this point the men made formal applications for contact with the children.
The Human Fertilisation and Embryology Act 2008 permits the non-birth mother in a civil partnership at the time of fertility treatment – both at a licensed clinic and elsewhere – to be the child's legal parent. This meant that the men were not considered to be the legal fathers of the children who were conceived at the time the recipient couples were in civil partnerships. As non-legal parents, under the Children Act 1989 they required the court's permission to apply for a contact order.
The men's applications were resisted by the lesbian couples who argued that granting a contact order would infringe their family unit. The judge acknowledged that the rights of lesbian couples - having the same status as heterosexual couples - to their private lives would be a relevant factor in determining an order.
He said the decision to grant permission should not be taken as an indication of donor's rights against lesbian couples. 'I endorse the submissions that the policy underpinning these reforms is an acknowledgement that alternative family forms without fathers are sufficient to meet a child's need', he said.
In deciding whether to grant permission, the court said a number of factors needed to be weighed including the underpinning policy and reforms implemented by the 2008 Act and relevant considerations under the Children Act. These include the nature of the application, the applicant's connection with the child and any risk that the application would disrupt the child's life causing harm.
Justice Baker emphasised that the men were 'not strangers' to the children and, by agreement with the lesbian couples, had frequent contact with them. In granting leave, the judge said: 'Each case is, however, fact-specific, and on the facts of these cases...I find that the most important factor is the connection that each applicant was allowed by the respondents to form with the child'.
He conceded it was arguable that the relationships the men were allowed to form with the children could amount to a private or family life and refusing leave would amount to a breach of their human rights.
Justice Baker explained that legal parenthood does not extinguish the possibility of having a relationship with a child. 'The 2008 Act denies the biological father the status of legal parent, but it does not prevent the lesbian couple, in whom legal parenthood is vested, from encouraging or enabling the biological father to become a psychological parent', he explained, adding: 'Social and psychological relationships amounting to parenthood can and often do co-exist with legal parenthood'.
The Human Fertilisation and Embryology Authority said the ruling raised questions on whether a known donor can seek access to a child that he is biologically related to, even if he is not the legal father. It speculates: 'If contact is granted this may raise concerns for families who have had donor conception treatment using a donor known to them – whether through a private arrangement or through a licensed clinic'.
A statement from Natalie Gamble Associates, a law firm involved in the case, reads: 'The ruling is... exceptionally unlikely to apply to donors who have had no contact with the child – for example unknown donors through licensed clinics'.
'However, the ruling could apply to other types of known donors, including known sperm or egg donors who have donated through a licensed clinic, if they can demonstrate sufficient connection with the child in practice'.
Natalie Gamble Associates also clarifies that the ruling does not affect a donor's legal responsibilities, for example, by making them financially responsible for children they help conceive.