The parent trap

Advances in medicine, science and technology have fractured how we understand parenthood and what it means to be a parent. The parameters of what it is to be a ‘parent’ stretch beyond consanguineal (blood) relationships. Much of this change has emanated from the medical laboratory and then ends up in the courtroom. As Justice Hayden observed in a 2015 England and Wales High Court case, family courtrooms have become ‘the vanguard of change in life and society. Where there are changes in medicine or in technology or cultural change, so often they resonate first within the family’.[1]

The number of donor-conceived children born in the UK has more than tripled since 2006. They now account for one in 170 of all births and for nearly one in six births using in-vitro fertilisation (IVF) in the UK.[2] However, that only accounts for known cases. It is impossible to quantify the number of unknown cases that arise via informal private arrangements. In 2022, a judge sitting in the Family Division of the High Court (the Family Court) heard three linked cases concerning a man who had placed an advert as a potential sperm donor on a social media page for same-sex female couples seeking sperm donors.[3] The case came before the court in circumstances where he sought parental responsibility orders in respect of the children he had fathered.

The ‘Alphabet’ cases

In recent years, there have been a series of cases before the Family Court that have considered the question of children born following donor insemination in licensed clinics where statutory requirements had not been complied with as a result of a failure by the relevant clinic, resulting in uncertainty about legal parentage. In In the matter of the Human Fertilisation and Embryology Act 2008 (Cases A, B, C, D, E, F, G and H Declaration of Parentage) the court considered cases in which the applicant couples had undergone successful fertility treatment using donor sperm at a licensed clinic,[4] but where the consents to treatment, required by Part 2 of the Human Fertilisation and Embryology Act 2008 (the Act), had either since gone missing or were not in accordance with the consent forms mandated for use by the Human Fertilisation and Embryology Authority (HFEA).

The issue for advisors

For advisors, it is important to have an understanding of how parenthood is ascribed with respect to sperm donation (in fact, more broadly, all aspects of assisted reproduction) because parenthood brings with it important rights and responsibilities that have a direct impact on private client issues such as estate planning. When looking at the issue of sperm donation, the critical issue will be establishing whether the donor is recognised as a legal parent. This will have significant implications for matters such as inheritance, intestacy and succession. Whether the donor is a legal parent will largely depend on the circumstances in which the donation was provided. It also follows that it is as equally important to understand when a non-biological parent is recognised in law as holding that status.

Donation in a licensed clinic

Where a donation has been given anonymously and treatment occurs at a licensed clinic in England and Wales, there are a number of considerations. If it is a couple who are being treated together (e.g., a same-sex female couple or an opposite-sex couple) and they are married or in a civil partnership at the time of treatment when using anonymous sperm, both will be recognised as the child’s legal parents and the donor will have no legal status with the child. They will both be named on the child’s birth certificate. However, where the couple are not married or in a civil partnership, for the other partner (i.e., the one who is not gestating the child) to be recognised as a parent the relevant consent forms must be signed prior to the commencement of treatment to ensure they are recognised as a parent.[5] If those forms are not signed and the parenthood conditions in the Act are not complied with then the donor is considered the legal parent and the partner who was intended to be the second parent will not hold that status legally.

Changes to the law on sperm donor identity disclosure

The legal position between 1 August 1991 and 31 March 2005 was that egg and sperm donors who donated at an HFEA-licensed clinic would remain anonymous. Donor-conceived adults could only apply to the HFEA for non-identifying information about the donor.

However, a change in regulations on 1 April 2005 removed anonymity for donors, meaning that donor-conceived individuals can now request information about their donor when they are 16 years old (donor’s characteristics only) and 18 years old (donor’s identity). The Human Fertilisation and Embryology Authority (Disclosure of Donor Information) Regulations 2004 set out the information to be provided to donor-conceived people when they reach the ages of 16 and 18. Information that can now be obtained at 18 includes:

• the surname and each forename of the donor and, if different, the surname and each forename of the donor used for the registration of their birth;
• the date of birth of the donor and the town or district in which they were born;
• the appearance of the donor; and
• the last known postal address of the donor.

Children born post-1 April 2005 are now turning 18 and will have a right to access the above information. However, it is important to note that where a donor-conceived child contacts their donor, the donor still has no legal relationship with the now-adult child. That is to say, if the donor were to die intestate, the donor-conceived child would not be considered as part of their family.[6] Similarly, it would not be possible for a donor-conceived child, where conception was undertaken though a licensed clinic, to obtain a ‘declaration of parentage’ under s.55a of the Family Law Act 1986 to amend their birth certificate and name the donor as their parent.

Where donation takes place outside of a licensed clinic

Where sperm donation takes place outside of a licensed clinic, whether a sperm donor is recognised as a legal father will depend on the status of the parties’ relationship. If the donation takes place via artificial insemination (i.e., not via sexual intercourse) and the couple are married or in a civil partnership the donor will not be recognised as the child’s legal parent. However, where the couple are not married or in a civil partnership and the donation takes place via artificial insemination outside of a licensed clinic, the donor is recognised as the child’s legal parent.

Broader implications

The prevailing school of thought for donor-conceived children, whether via sperm donation or egg donation (in the case of surrogacy), is that transparency about their life story is the gold standard for those children. The findings of a recent longitudinal study showed that:[7]

• Absence of a biological connection between children and parents in assisted reproduction families was found not to interfere with the development of positive relationships between them or psychological adjustment in adulthood.
• Being open with children about their positive conception at a young age had positive effects.
• Young adults conceived by sperm donation reported poorer family communication than those conceived by egg donation.
• Forty-two per cent of sperm donor parents disclosed the child’s origins to them by age 20, compared to 88 per cent of egg donation parents and 100 per cent of surrogate parents.

Conclusion

Although these issues might seem like the field of the family lawyer, for advisors, the key points to take away are as follows:

• Where parentage is relevant, confirm how it is established (i.e, do not just assume that status is held).
• Consider using inclusive language when drafting to prevent unintentionally excluding donor-conceived (including children born via surrogacy) or adopted children in the future.
• Where possible, advise private clients to seek specialised family law advice in respect of family building to consider the possible wider consequences for their family structures particularly where there might be complex generational wealth issues.