The recent judgment handed down in the case of M v F and H  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).
This case involved a married heterosexual woman who was unable to conceive with her husband and sought the assistance of a donor through an online 'introduction' website for donors and women or couples seeking to conceive.
Such websites are not regulated by the HFEA if they do not 'procure, test, process or distribute' eggs or sperm for insemination services. A number of so-called introduction websites – websites that aim to match gamete donors and intended parents - exist and seek to assist people who want to have children, whether they are straight, married, gay or single. Although the organisations administering these websites may operate on an entirely altruistic basis, there is very likely some financial motive in setting them up.
Further, as these organisations are largely unregulated there is no mandatory basis for vetting the donors who may be offering to donate, although some websites may advise users to use a licensed clinic for insemination or else check a donor's medical history.
As Mr Justice Peter Jackson in M v F and H explained: 'participants in informal arrangements have to judge all risks for themselves'. However, he acknowledges that, 'Those seeking to conceive may be in a vulnerable state and not all donors are motivated by altruism'.
There will be donors who are predatory men who want access to vulnerable and desperate women to fulfil their own sexual and other needs. There will also be donors motivated by altruistic means. Some donors may feel the licensed clinic route to treatment to be an expensive option available only to those able to afford it and believe that the chance to have a family should be a right available to all. Other donors may feel that the licensed clinic route is too cold and clinical or too regulated and not in line with their own ethos about family creation, perhaps. But how does the woman distinguish one type of donor from the other?
Mr Justice Jackson commented, 'this informal trade is not unlawful, but it is not regulated in any meaningful way'. Some of these websites seek to provide precedent 'donor agreements' purporting to set out what each party's rights and obligations are or might be, without always making it obvious that such agreements have no legal force.
Such informal donor arrangements also mean that there is no official check as to how many children the donor may have fathered. There will very likely be no formal medical records. There would be no compulsory medical testing of any kind. The people involved would not have the benefit of counselling which is built into the HFEA's regulations which would give all an opportunity to reflect and consider.
With informal donor arrangements, there would be no formal way of evidencing the availability of consent from the husband or civil partner of the woman intending to conceive, which has significant repercussions for the legal rights and responsibilities between the husband or civil partner and the donor.
It is not unusual to come across situations where informal donation has taken place by natural insemination where the donor genuinely believes he is doing nothing more than seeking to help start a family. If the participants are ignorant of the law, the donor could find he has acquired legal status in relation to that child and also financial responsibilities. That is very likely not to be what he or the other participants intended. If the ground rules were clear to everyone at the outset, is it right and fair that the landscape should be allowed to shift so fundamentally, where someone genuinely believed they were providing a much needed service?
One other important aspect of unlicensed donation is that the donor conceived child or children will have little or no means of tracing his or her biological origins. Is this in the best interests of a child?
Further, safety issues are also a consideration as inevitably such websites are bringing together two strangers, so all the usual provisions with meeting strangers online will also need to prevail. Clearly the unlicensed route could be, as this case shows, a bit of a rogue's charter for the unscrupulous donor who preys on vulnerable women and couples.
Is regulation the answer? Will regulation merely result in more bureaucracy and not necessarily address the issue of the desperate situation that childless people find themselves in? Will more regulation merely drive people in these situations into even more desperate situations and further into the margins? Will regulation and involvement of the authorities drive up costs making this route unaffordable for some and leaving the less well off unable to find a path to parenthood?
This particular case turned almost entirely on its own facts but it highlights the need for there to be more information, legal and otherwise, to be available and for people in this situation to be certain of what that they are entering into or at least be aware of the uncertainties, both for themselves and for the child or children that they may create.