Sperm Donation, Surrogacy, and Co-parenting Arrangements

By Hadaway & Hadaway Family Solicitors North Shields UK

There are many perfectly valid reasons why individuals or couples may choose to go with a sperm/egg donor or co-parenting agreement. This article deals with the potential legal hiccups that should be addressed before entering into any such agreement.

Do sperm and egg donors have parental rights and responsibilities?

As gov.uk states:

Sperm donors

If you donate sperm through a Human Fertilisation and Embryology Authority (HFEA) licensed clinic, you will not:

• be the legal parent of any child born
• have any legal obligation to any child born
• have any rights over how the child will be brought up
• be asked to support the child financially
• be named on the birth certificate

If you use an unlicensed clinic to donate sperm, you will be the legal father of any child born from your donation under UK law.

Egg donors

If you give birth to a child, you’re always considered the legal mother in UK law even when using a donated egg.

Things then get more complicated over this, of course. Anonymous donors do not have parental responsibility, but known sperm donors could be considered the legal father. Couples may or may not want a complete cessation of parental rights and responsibility from the donors. Donors may think they have no such legal responsibilities, only to be called up later by the court.

If sperm donation involved natural intercourse (hence, natural insemination as opposed to artificial insemination in an accredited clinic), the sperm donor is considered the father with parental rights and responsibilities regardless of any agreements beforehand. This was settled in M v F and H (2013).

What is co-parenting?

Co-parenting refers to when two or more people intend to parent a child together but at least one is not a legal parent or has not been in a relationship together. For some, such an arrangement Is intended to provide a child with two or more parents that all have a role in their life, or give a chance for the child to get to know their biological parent if they are unable to exercise parental responsibility. For others, it could be an option not to go for donor insemination in a fertility clinic to ensure their child will have particular characteristics or background. For others, it can come down to the cost of NHS treatment, or the choice of a known donor that they trust.

Co-parenting is complicated, and all who want to undertake such an arrangement need legal advice instead of just informal mutual consent. Many legal battles and disputes have been known to erupt later from not knowing that being a donor means differently from a family arrangement and in the eyes of the law, or that they would only be a co-parent, or even that they are being blocked from having anything to do with their child’s life.

Under UK Law, a child may only have two legal parents.

Who is a known sperm donor?

This refers to any male donating sperm as other than an anonymous donor through a sperm bank with a licensed fertility clinic in the UK. This ‘service’ is more common than it seems, and it is a source of many legal complications.

Who is a legal parent at birth when a known donor or co-parent arrangement is involved?

Legal parentage is extremely important for the child as it influences many things from their personal relationship between their biological and caregiving parents, their nationality, and their right to inherit.

• The mother –

The woman who carries the child to term regardless of how she has any genetic connection to the child as a surrogate for a donated and fertilized egg or through artificial insemination of her own egg. 

• The father –

As had already been noted, if the fertilization was done through natural insemination, the man who did the act will always be considered the natural legal parent.

If through anonymous sperm donor and artificial insemination, then the question is whether or not the birth mother was married or in a civil relationship during the time of conception. If so and unless it is shown that her spouse or civil partner did not consent, then their spouse/civil partner will be the second legal parent regardless of whether or not they are the biological parent. This is in Sections 35 and 42 of the Human Fertilisation and Embryology Act 2008.

• The mother’s spouse/civil partner –

In such cases, it matters more where the conception takes place. If it happens inside a licensed UK fertility clinic, then in sections 36-38 and 43-46 of the HFEA 2008, with the written consent of fatherhood conditions by both mother and her partner, then that person may be considered the father or second legal parent of the child.

There is no requirement that the child is brought about by the man’s sperm or even for the parties to be in a physical relationship together.

While usually the legal father of a child from an anonymous donor will be the mother’s partner, it would also be possible for the other parent to be someone that the mother intends to co-parent with but not the child’s biological father. The parties involved must be in prohibited degrees of relationship to each other (degrees of consanguinity or affinity).

If the woman is not married or in a civil partnership or their spouse/partner had not given consent, and the sperm donor is known and is in the fertility clinic with them (assuming, for example, male same-sex couples seeking surrogacy) the donor will naturally be the child’s father.

• If there is no one else –

If no consent had been given for another person to be treated as the legal parent (and anonymous donors to the fertility clinic cannot be held responsible) then the child simply would have one parent. When same-sex partners are married and the child and conceived by artificial insemination, the child would have no legal father but have both their names on the birth certificate.

If however the mother’s spouse or civil partner did not consent and the conception did not take place in a licensed fertility clinic, then a known sperm donor would be the legal parent. Whereupon a couple had entered into an arrangement with a man to inseminate at home, that man will be the legal father of the child. It is not possible to consent to another person being the legal parent with home insemination.

The Surrogacy Agreement

If you use a surrogate, they will be the child’s legal parent at birth. Their partner will be the child’s second parent unless they had not given consent. For donors to obtain parental rights over their genetic child, legal parenthood would need to be transferred by parental order or adoption after the child is born.

Surrogacy agreements signed prior to conception are not enforceable by law in the UK. If the birth mother wants to keep the child, they can. They have to willingly give up parental rights and responsibility, regardless of whether she has any genetic bond to the child.

Is it illegal to pay for child surrogacy in the UK?

It is widely held that it is illegal for parents in the UK to pay a surrogate for more than their reasonable expense. It is, in fact, only illegal for someone to try to profit from surrogacy and matching surrogates and would-be parents. When it comes to couples paying their surrogate, the definition of ‘reasonable expenses’ can be very fluid. The issue of payments is a concern for the family court, which must decide to authorize payments of more than reasonable expenses before it can make a parental order.

It is up to the cost to decide what is reasonable in each case, and there has not so far been a situation where the court had refused to make a parental order simply because too much is paid, as long as all parties involved have a careful, well-reasoned agreement with no coercion or misinformation at any point along the way.

Why does it matter whether you are a legal parent, a known donor, or a co-parent?

It is the parental order that, with the full and free consent of the surrogate or sperm donor, makes the intended donor parents the legal parent and permanently extinguishes their rights of parenthood over the child. For the parental order to be granted, the recipient parent must have a genetic connection to the child.

If the known donor/legal parent’s status of parenthood has not been nullified by a parental order, then they may always apply for a child arrangements order and/or may be held for duties under parental responsibility without their prior knowledge or consent.

The fact a person is a biological parent but not a legal parent does not necessarily add additional weight to the application.

Nor does the fact that it has been intended that a person will be a mere donor or a co-parent dictate the substantive order to be made.

The court rejects notions of ‘secondary parents’ and ‘primary parents’ in Thorpe LJ in A v B and C  2012 EWCA Civ 285 and that each case must remain very fact-specific and carefully evaluated in a welfare checklist and treated on a case-by-case basis.

She stated

“no matter how detailed their agreement, no matter what formalities they adopt, this is not a dry legal contract…above all what must dictate is the welfare of the child not the interests of the adults”.

The position regarding financial support is often discretionary and not based on the child’s welfare. Many donors are often caught by surprise after an agreement that would only be a donor or not have any genetic relationship to the child to avoid being called to provide child support.

In Re M-M [2014] EWCA Civ 276, McFarlane LJ commented

“’the father decided that he did not wish to play any direct part in [the child’s] life and my understanding is that he has neither met [the child]  nor communicated with her.  That, of course, was his choice.  What was not his choice was to walk away from any liability that he may have to provide financial support for [the child]”.

Claims to CMS cannot be made against a donor or co-parent that is not a legal parent.

Conclusion
Co-parenting arrangements and known donors and surrogates raise issues about legal parentage. Those who want to enter such arrangements must carefully consider their methods and who they should trust with being a legal parent at birth with all the implications such a legal and personal relationship will imply. The court cannot be bound by a prior surrogacy agreement, but it would certainly be helpful to note whether such arrangements would raise issues about how legal and non-legal parents should be or would be entitled to be involved in their child’s life. It often comes down to who you trust to be the third element in a co-parenting agreement.

As only legal parents can apply for child arrangement orders, this complicates things in the future in case of divorce or leave to apply; grandparents seeking contact or assumption of parental responsibility and protection with their grandchildren, for example. This need not be out of family drama but also from accidental untimely death, as another example. The child’s familial and legal web of relationships should be anticipated beforehand.

Even more limited is the ability to seek financial support concerning a child who does not have the full breadth of family arrangements. Applicants for financial support may be donors or co-parents, but only legal parents or step-parents can be respondents. A co-parent without legal parenthood cannot be required to provide financial support for the child.