Sperm donors (known donors and co-parents)
The information in this page applies to men who donate sperm as a known donor or co-parent (whether through a clinic or conception at home). The law in this area can be complex, and we would always recommend that you contact us for legal advice on your particular circumstances.
Sperm donors: will you be the legal father?
Where you donate to a couple and your recipients are treated as the legal parents (either by law or following adoption), you will not be the legal father. The rules are complicated, but generally speaking your parenthood status may therefore be excluded if you donate to:
- a married couple (provided your recipients conceive through artificial insemination, whether at home or at a clinic),
- a civilly-partnered lesbian couple after 6 April 2009 (provided your recipients conceive through artificial insemination, whether at home or at a clinic),
- an unmarried couple (provided that your recipients conceive with your sperm at a licensed clinic and both sign the relevant HFEA parenthood forms),
- a non civilly-partnered lesbian couple after 6 April 2009 (provided that your recipients conceive with your sperm at a licensed clinic and both sign the relevant HFEA parenthood forms),
- a lesbian couple who have adopted the child.
In any other case (including donation to a single woman or to a lesbian couple before 6 April 2009 and donation through intercourse rather than artificial insemination), you will be treated as the legal father. It is a common misconception that, if you donate through a licensed clinic and sign the relevant HFEA consent forms to donation, your parental status as a donor will be automatically excluded. That might be the case, but the law is complex, particularly if you intend any ongoing role in your child's life. Contact us if you would like advice on your particular circumstances.
If you are treated as your child’s legal father, you will be financially responsible regardless of whether you are named on the birth certificate. You will only have parental responsibility (the right to be involved in day-to-day and key decision making about the child’s upbringing) if you are named on the birth certificate, or subsequently acquire parental responsibility.
Although the law on this is as yet untested, there may be some scope for you to apply to court for rights in relation to your child even if you are not the legal father, particularly if you have had any involvement in your child’s upbringing. There may also be scope for you to be pursued financially if you have in practice maintained your child.
Co-parenting and involved sperm donation
If you are donating on the basis that you will be involved as a co-parent, you may want to ensure that your status as a legal parent is protected as far as possible.
This may be difficult if you donate to a married couple or to lesbian civil partners after 6 April 2009, following recent changes in the law. Although the law in this area is untested at present, related case law suggests that there may be some scope for a natural father who has had regular involvement in his child’s upbringing to apply to court if he is later excluded. However, your position is significantly less protected than if you were your child’s legal father.
If you donate to a single woman (or a lesbian couple where the non-birth mother is not a parent), you will normally be treated as your child’s legal father (although you may need to take legal advice on your situation to confirm this if you donate through a clinic). You will, however, only have parental responsibility for your child if you are named on the birth certificate.
Sperm donors and co-parents: in a gay relationship?
If you are in a same sex relationship, you may also want to acquire status for your partner. If you are civil partners and you are your child’s legal father, your partner will qualify as a step parent, and this opens the possibility of acquiring parental responsibility for him by agreement (with the consent of your child’s mother).
Sperm donors and co-parents: do we need a donor or co-parenting agreement?
Every donor agreement we prepare is bespoke, although there is a broad distinction to be drawn between donor agreements and co-parenting agreements. Donor agreements are designed to try and exclude or minimise your status and responsibilities. Although they are unlikely to be legally binding, a properly drafted agreement which is reasonable and reflects both sides having had legal advice, may carry weight with the court if a dispute arises. If you are planning a co-parenting relationship, the purpose of a written agreement is less to limit your responsibilities and more to define how you envisage the relationship working.
Whatever type of agreement is appropriate to you, if it is to be effective practically and legally, it needs to be carefully drafted according to your particular circumstances. Drafting the agreement goes hand in hand with discussing with you how the underlying law works to underpin the agreement, with a view to helping you to avoid pitfalls and manage your relationship successfully throughout your child’s upbringing.
Whatever your plans, the process of putting an agreement in place can help to avoid disputes arising. Most disputes between donors and recipients arise because there were mismatched expectations at the outset, and preparing an agreement helps you to flush out any issues between you and to make the basis of your relationship clear.
Please contact us if you would like our help.
Sperm donors and co-parents: do I need to make a will?
If you are acting as a known donor or co-parent it may be particularly important to make a will. You may, for example, wish to include or exclude a child who is or is not your legal child. You can also use your will to set out clearly what arrangements should apply for the care of your child in the event of the death of his/her other parents.
Contact us if you would like our help with making a specialist will.
