Thanks to scientific advances, there are a number of options available to individuals and couples who are unable, or find it difficult, to have children.
One such option is donor insemination, otherwise referred to as sperm donation. This where an egg is fertilised using the sperm of a donor, who may or may not be known to the mother.
Before you decide to use a sperm donor, or if you intend to be a sperm donor yourself, you will need to have a thorough understanding of what your legal rights and responsibilities are when it comes to establishing who has parental responsibility.
What is parental responsibility?
Parental responsibility gives someone authority to make decisions about a child’s upbringing. If an individual has parental responsibility, they will have a number of duties towards their child. These can include, but are not limited to:
- Providing a home for a child
- Protecting and maintaining the child
- Choosing and providing for the child’s education
- Agreeing to the child’s medical treatment
- Naming the child and agreeing to any changes of name
- Looking after the child’s property
- Disciplining the child
Parental responsibility focuses on a parent’s duties towards a child, rather than the parent’s rights over the child. It is different from legal parenthood – a child can only have two legal parents, however, there is no limit on how many people can have parental responsibility (although it is usually just the parents who have it).
A child’s birth mother will always automatically have parental responsibility. The mother’s partner will also automatically have parental responsibility if they were married or in a civil partnership with them at the time of birth.
What rights do sperm donors have?
Using a licensed clinic to conceive
As long as the mother conceives using a Human Fertilisation and Embryology (HFEA) clinic, the automatic position is that the sperm donor will not be considered the legal father and will therefore have no legal rights in respect of the child. This means that the donor will not have automatic parental responsibility.
If the mother is married or in a civil partnership, their partner will automatically become the legal parent of the child, so long as they provide consent, and will therefore have parental responsibility.
If the mother is in a relationship, but is not married or in a civil partnership, they will be the only individual with automatic parental responsibility. However, their partner can be granted parental responsibility if they apply to become the second legal parent. They can then have their name put on the birth certificate and either make a parental responsibility agreement with the mother or get a parental responsibility order from court .
If the mother knows the donor and there is no partner or second parent, it is also possible for the donor to be granted parental responsibility by applying to become the second legal parent. Whether this is possible will depend on certain circumstances including what paperwork is signed at the clinic and whether everyone has the same intentions concerning the donor’s role.
Undergoing private treatment to conceive
The situation can become more complicated if the mother undergoes private treatment outside of a HFEA licensed clinic using a known sperm donor (either at home or using an unlicensed clinic).
In these cases, the legal father is either the birth mother’s spouse or civil partner or it is the sperm donor.
If the mother is married or in a civil partnership, the partner will still be considered the legal parent and will automatically have parental responsibility for the child.
If the mother is not married or in a civil partnership, the donor will be considered the legal father. This also remains true if the mother considers herself to be in a relationship. Unless it is a marriage or civil partnership, the donor will still be considered the legal father.
However, in order to be granted parental responsibility, the donor will still have to sign the birth certificate and either enter into a parental responsibility agreement or be granted a parental responsibility order from the courts.
Even when the donor isn’t considered to be the legal father, they could still apply for a Child Arrangements Order. This could determine what contact the donor is afforded with the child and what type of contact takes place.
It is also worth noting that if the child is conceived through sexual intercourse with the sperm donor (rather than artificial insemination), the donor will always be the legal father regardless of whether the mother is married or in a civil partnership.
Creating a co-parenting arrangement
If the mother and donor know each other, they may wish to draw up a co-parenting agreement. A co-parenting agreement sets out in writing the role the donor will play in the child’s life.
Most licensed clinics will support the decision to make a co-parenting agreement, but they will advise that both parties should seek independent legal and financial advice before such an agreement is drawn up.
A co-parenting agreement can:
- Set out what expectations all the parties have
- Help to avoid future disputes
- Be reviewed and changed over time
- Be referred to if a dispute were to arise
It must be noted that these agreements are not legally binding. While they are a good way of clarifying what each party expects from the proposal, they do not guarantee the donor’s role or his financial responsibilities.
Contact Our Fertility Law Solicitors
At Crisp & Co, we have an expert team of fertility law solicitors who are on hand to answer any questions you may have about assisted reproduction as well as helping you to clarify your rights, both as a mother and as a donor.