Donor conception agreements in England
Becoming a parent is an exciting experience, but for many, the journey involves navigating intricate legal terrain. For some, the journey includes the use of a sperm donor. Donor conception agreements in England and Wales, as part of the broader legal framework governing sperm donation, have evolved significantly over the past 20 years. Understanding the complexities of this area of law is useful for couples, single parents, or donors alike, as it helps protect everyone involved.
Some readers may recall ‘The One Where Emma Cries’, a heartfelt episode of Friends where Monica and Chandler face fertility struggles, and Rachel proposes that Joey might donate sperm. While Joey initially agrees, he reconsiders after considering the long-term implications, such as how he might develop a relationship with the child. While this was a fictional 20-minute sitcom, similar concerns are reflected in real-life cases, requiring legal guidance when drafting donor agreements.
UK-licensed sperm donations
One significant case that highlighted the complexities surrounding sperm donation in the UK was Leeds Teaching Hospitals NHS Trust v Mr A, Mrs A, and Others. A woman became pregnant with twins through insemination at a fertility clinic, but the clinic mistakenly used sperm from a third party instead of her husband’s. This mistake was discovered when the couple, both white, had biracial twins. The case raised important questions about parental rights, as neither the husband nor the biological father could be legally recognised under the law at the time.
The Human Fertilisation and Embryology Act (HFEA) was updated in 2008 to address such issues. It clarified that sperm donors through UK-licensed clinics are not considered legal parents and have no legal responsibilities for children born from their donations. The law also expanded rights for same-sex couples, allowing both to be recognised as legal parents.
Legal position
Under English law, the birth mother is automatically considered the legal mother, and will be the legal parent and have parental responsibility for the child regardless of biological connection. For instance, in surrogacy cases, the surrogate who has carried and given birth to the child will be recognised as the child’s legal mother until a parental order is made, which can take many months. The HFEA 2008 provides two exceptions where a sperm donor is not considered the legal father:
- The first exception applies to donations made through UK licensed clinics, offering unique legal protection for donors.
- The second applies if the birth mother is married or in a civil partnership, where the spouse is presumed to be the legal parent unless they did not consent to the treatment or artificial insemination. This is because English law does not permit a child to have more than two parents.
Donor arrangements in the UK are regulated by licensed clinics under the guidance of the HFEA. Donors who donate via a UK-licensed clinic will have no legal rights over the child, will not be named on the birth certificate, and bear no financial responsibility. However, children conceived through donor conception can access the donor’s name, date of birth, and last known address when they turn 18. DNA testing and genetic tracing may also reveal a donor’s identity earlier than this, by coincidence. UK donors may donate to no more than 10 families and are only allowed to know the number, birth year, and sex of children conceived from their donation.
In the Friends episode, if Joey had donated sperm to Monica and Chandler, this would have been a “known donation arrangement.” These arrangements include situations when a friend, family member, or known person donates sperm, including through a donation agency. This is what we focus on at Expatriate Law.
Donor agreements with Expatriate Law
Expatriate Law has expanded its services to include drafting donor conception agreements. This development was initiated by Hero Lomas, Partner at Expatriate law, who was instructed to draft such an agreement. The client, a single woman, sought to become a mother with the help of a close friend who had agreed to donate sperm. The case was complicated by the fact that the client had dual nationality, planned to move overseas for the first years of the child’s life, had her eggs stored abroad, and the donor was a non-UK citizen who resided in a third country. With three jurisdictions involved, drafting the agreement required careful assistance which was sought from specialist counsel, the highly knowledgeable Jennifer Lee of Pump Court Chambers.
Preparing the agreement
Although known donor agreements are not legally binding in England, they carry significant persuasive value in clarifying the intentions of both parties. These agreements provide crucial context in case of future misunderstandings and disputes.
If conception occurs with a known donor outside a UK-licensed clinic, or even in a licensed clinic abroad, the donor could be recognised as the legal parent under English law. This could open the door for the donor to seek contact with the child or face financial claims. It was explained to our client that conceiving through a UK-licensed clinic would protect her from these risks, but it did not align with her wishes, partly due to logistical difficulties. The risk she faced in her decision was that if her donor later changed his mind, he would be legally recognised as the father, with potential legal and financial implications for both parties.
Because of such complications, it was crucial that a comprehensive agreement be drafted outlining both parties’ expectations. Some key questions that were incorporated into the agreement included:
- Does the donor expect direct or indirect contact with the child?
- Will the donor’s wider family have contact with the child?
- Will the donor make financial contributions to the child?
- Will the donor be consulted on major decisions like healthcare or education?
- What happens if the donor participates in family events or holidays?
- Will the donor’s expectations change if they have children of their own?
Both parties should obtain independent legal advice in every jurisdiction involved to ensure they fully understand the potential risks and scenarios. As well as legal guidance, seeking counselling can help all parties understand all possible ramifications of donor conception.
Expatriate Law is committed to drafting thorough donor agreements and cross-checking them with other relevant jurisdictions. It is important that all parties in a donor conception arrangement are fully informed, legally protected, and emotionally prepared.
