Introduction
In recent years, there has been an increase in the number of children conceived through donor conception in the UK. This is partly due to advances in fertility treatment, which have made it easier and more accessible for people to conceive using donor sperm. However, this increase has also raised questions about the legal rights and responsibilities of donors, parents, and children. It is important for individuals and couples considering donor conception to understand their legal position and seek advice if needed.
Legal Parenthood in the UK
If you give birth to a baby using donated sperm or embryos, you will be the legal parent of the child. If you’re married or in a civil partnership before fertility treatment with donated sperm or embryos, your partner will also automatically be the legal parent unless they do not consent to the treatment.
If a woman has fertility treatment without a partner, she will be the child’s legal mother. However, if a man has fertility treatment without a partner, he will not automatically be the child’s legal father. Instead, he will need to apply for a Parental Order to become the child’s legal father.
Why is Legal Parenthood Important?
Legal parenthood creates a lifelong legal connection with a child. Legal parenthood is different from parental responsibility and it is possible to hold one without the other or both in law.
- The financial responsibility for a child – child maintenance
- Inheritance rights – giving your child a right of inheritance from you.
- Citizenship rights
A child can only have two legal parents. In England and Wales, the birth mother is always a legal parent. If a child has been conceived naturally then the second parent will always be the biological father. If married or in a civil partnership, the partner will be the second legal parent.
When a couple use donor sperm and are unmarried or not in a civil partnership, the partner will not automatically be the second legal parent.
All mothers and most fathers have legal rights and responsibilities as a parent – known as ‘parental responsibility’.
If you have parental responsibility, your most important roles are to:
- Provide a home for the child
- Protect and maintain the child
You’re also responsible for:
- Disciplining the child
- Choosing and providing for the child’s education
- Agreeing to the child’s medical treatment
- Naming the child and agreeing to any change of name
- Looking after the child’s property
Parents have to ensure that their child is supported financially, whether they have parental responsibility or not.
Second Legal Parent
Couples using donor sperm who aren’t married or in a civil partnership can complete legal paperwork to consent to their partner becoming the second legal parent once the child is born. This can only be done via a HFEA licensed fertility clinic and must be completed before fertility treatment and cannot be done retrospectively.
The problem with private donors
Some women decide to enter an arrangement with a “private” sperm donor, often found on the internet. This comes with many risks, including infection, genetic inherited conditions or questionable fertility. However, it is important to consider that the “donor” could be held responsible as a legal parent and if the couple aren’t married their partner cannot consent to being the legal parent. This can become a legal minefield.
Surrogacy
Surrogacy is another option for people who are unable to conceive a child naturally. In the UK, surrogacy is legal, but it is illegal to advertise for a surrogate or for a woman to advertise that she is willing to act as a surrogate. Surrogacy arrangements must be made on a voluntary basis, and no payment beyond reasonable expenses can be made to the surrogate.
The surrogate will be the legal parent of the baby at birth, even if she is not genetically related to the child. The intended parents must apply for a Parental Order to become the legal parents of the child.
Conclusion
Legal parenthood and fertility treatment can be complex areas of law, and it is important to understand your rights and responsibilities before starting treatment. The Human Fertilisation and Embryology Act 2008 provides a framework for legal parenthood in the UK, but there are still many factors to consider, such as donor conception and surrogacy. If you are considering fertility treatment, it is recommended that you seek legal advice to ensure that you fully understand your legal position.
Useful Resources
Authors
Matt is an NHS Consultant in Newcastle with over ten years of experience. His PhD research into subfertility and miscarriage involved developing a clinical trial and patient engagement.
