Starting or growing a family through sperm donation raises a number of practical and legal questions, particularly for the partner who is not biologically related to the child.
One of the most common concerns is: does my partner need to adopt our child if we conceived using a sperm donor?
Not necessarily. In some circumstances, the non-biological partner will automatically become the child’s second legal parent. In others, further legal steps, including adoption, may be necessary.
The position depends on how and where conception took place and what consents were given before treatment.
In England and Wales, legal parenthood following donor conception is governed by the Human Fertilisation and Embryology Act 2008. In particular, whether treatment took place at a UK licensed fertility clinic and whether the appropriate consents were completed can determine whether the non-biological partner becomes a legal parent automatically.
Who is the legal mother?
Where a woman gives birth to a child following donor conception, she is treated as the child’s legal mother.
“If you give birth to a child, you’re always considered the legal mother in UK law even when using a donated egg.” (GOV.UK)
How does a partner become the Child’s second legal parent?
Married couples and civil partners:
Where the birth mother is married or in a civil partnership, her spouse or civil partner will be treated as the child’s second legal parent automatically, provided they consented to the treatment. This applies to same-sex and opposite-sex couples alike.
Unmarried couples:
Where the couple are not married or in a civil partnership, the position depends on meeting the “agreed parenthood conditions.”
For an unmarried couple attending a UK licensed fertility clinic using donor sperm, if they have fully completed the clinic’s consent forms confirming that the partner is to be treated as the child’s second parent before the treatment, the partner will become the second legal parent automatically.
In these circumstances, a subsequent adoption is not required.
When can legal parenthood become more complicated?
Couples can run into difficulty where:
- Conception did not take place at a UK licensed fertility clinic
- Insufficient or incorrect consents completed
- A known sperm donor is used
In these situations, the sperm donor may, in law, be treated as the child’s legal father, even if this was never the intention of any of the parties involved. This can leave the non-biological partner with no automatic legal status, regardless of their level of involvement in the child’s life.
Does the non-biological partner need to adopt the child?
Not necessarily. However, adoption may be required in some circumstances.
Where the automatic routes under the 2008 Act do not apply, the non-biological partner may need to apply for an adoption order, sometimes referred to as a step-parent adoption, in order to secure their legal relationship with the child. In some circumstances, a parental order or child arrangements order may also be relevant.
What is the lasting connection between sperm donor and conceived child?
Since 1st April 2005, full anonymity of sperm donors was abolished.
From the age of 16, a donor-conceived individual can request information about the donor. At age 18 they can request further information identifying the individual such as the name, date of birth and address.
The sperm donor can find out details of children conceived using their sperm: such as how many, the sex, the year born. However, they cannot be granted any identifying details.
What should couples considering donor conception do?
If you are considering conceiving through sperm donation, it is worth establishing:
- Will you go to a UK licensed fertility clinic?
- Are you and your partner married, in a civil partnership, or neither?
- Have the correct consent forms been discussed before treatment?
- Is a known donor involved, and if so, has this been properly documented?
- Does the birth certificate need to be amended or completed in a particular way?
Need advice about sperm donation and legal parenthood?
Legal parenthood following donor conception should not be assumed simply because a couple are in a relationship or intend to raise a child together.
As this article explains, where conception takes place and whether the appropriate consents have been completed before treatment can be particularly important in determining legal parenthood.
If you are considering starting or growing your family through sperm donation, understanding the legal position before treatment can help you make informed decisions and identify whether any additional steps may be required.
Our family law team at Rose & Rose Solicitors LLP can advise you on legal parenthood, donor conception and the legal issues that may arise for non-biological parents.
If you are considering donor conception or are unsure about your existing legal status in relation to a child, contact our team to discuss your circumstances.
This blog post is not intended to be taken as advice or acted upon. If you are seeking legal advice, please contact our team of solicitors.
