More and more people, whether they are in a hetero-sexual relationship, same-sex relationship or are single, are using sperm donation to conceive. Intended parents can do this using sperm of an unknown person via a licensed clinic or via a person known to them such a friend or non-blood relative.
There are many things to think about before commencing the sperm donation process. Not just about the practicalities of finding a sperm donor or preparing for the baby.
You and the sperm donor should fully understand the legal side of sperm donation, so you understand what you are entering into. It can also help you avoid any potential misunderstandings, or problems in the future which could lead to emotional turmoil or expensive court litigation.
How does sperm donation work?
The legal position of each party to a donor arrangement depends on various factors, including:
- Whether the sperm donation occurred through a licenced clinic or not;
- Whether the donation was by virtue of artificial insemination or intercourse; and
- Whether the prospective parents were married or not at the time of donation and conception.
Conception through a licensed clinic
If the parties conduct the sperm donation through a licensed clinic, the donor will not be a legal parent unless it is agreed that he should be. The mother’s partner will legally be the father (if male) or the “other parent” (if female) of the child. The mother’s partner and the mother do not need to be married at the time of donation but if the mother is unmarried, the partner must sign a consent form at the clinic.
Sperm donation through a licensed clinic has many benefits. The clinics are regulated and can follow the correct processes to ensure the parties have provided informed consent and are given the emotional support they need throughout the process. The clinic will carry health checks including testing for specified infections and will conduct a genetic history assessment of the sperm donor.
Of course, the clinic route is not for everyone. Due to various reasons, for example, the costs associated with using a clinic, and the potentially longer process and the medicalised nature of clinics, many people prefer to conceive using a donor’s sperm at home, despite the legal implications.
Conception at home
If the prospective parents are married or in a civil partnership and the conception occurs via insemination and the ‘second parent’ consents to the donation and conception, the donor will have no status as the legal father.
If the intended parents are not married or in a civil partnership and conception occurs at home, the donor will be the legal father of the children. It is not uncommon for prospective parents and/or donors not to be aware of this fact in advance of conception, which results in a potential for dispute.
If the prospective parent is single and conception takes place at home, the sperm donor will be the child’s legal father. This is the case, even if the sperm donor is not named on the child’s birth certificate.
Given the potential difficulties with informal arrangements, it is recommended that each party takes legal advice early on.
Sperm Donor Agreements
It is advisable that both the intended parents and the sperm donor fully explore and understands each other’s intentions and are aware of all the obligations and consequences of the process.
A Donor Agreement is therefore a very useful tool as, although not legally binding, it explicitly sets out the parties intentions and their understanding of the implications and consequences before the process starts.
How our sperm donation and fertility law solicitors can help
If you would like any advice on understanding the law on sperm donation or Donor Agreements, please contact our fertility law solicitors for a one-hour free consultation.
Give us a call or fill in our online enquiry form.
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Sperm donation, egg donation and surrogacy: understanding the legal implications (having a child as an LGBT+ person)