Careful planning essential for families using sperm donation

21st August 2020 Family Law

A recent decision in Northern Ireland (C (A Child), Re (parentage) [2020] NIFam 6) has highlighted the legal complexities that can arise for same-sex couples, and families using sperm donation, if arrangements are not carefully planned in advance.  Although the law itself and some of the terminology differs between Northern Ireland and England & Wales, the complications that arose in this decision mirror those that can and do arise in cases in this jurisdiction, and highlight the need for legal advice and careful planning at the outset of any proposed arrangement.

In previous blogs, we have noted that one of the issues which most commonly catches people out is the way in which legal parenthood is assigned strictly by operation of law, rather than by reference to the intention of the adults involved in the conception.  If the law operates to confer legal parenthood on 1 or 2 of the adults, it is not always possible for it to be re-assigned if it has not gone to the right person.  As the law stands, a child cannot have more than 2 legal parents (and in some circumstances may have only 1).

The facts of the case were a female same-sex couple had a child with a known sperm donor.  Only the woman who gave birth to the child was named on the birth certificate, and there was subsequently dispute as to whether her female partner, or the donor, was or could be a second legal parent, and as to the extent of any on-going role the donor would play in the child’s life.  The donor contended it was always envisaged he would have some form of continuing contact, but the women did not agree this had been the plan. Unfortunately, there was no written agreement in place to confirm what had been discussed or agreed. The Judge was somewhat scathing about the way in which such dispute had come about, stating:
“It is appalling that the planning between the adults for something so important and long lasting was so inadequate. People put more care into arranging a holiday than these three adults did for C. To the extent that there were discussions the outcome was incomplete and incoherent”.
By the time of the hearing, it appeared to be accepted that the donor, the biological father of the child, did not seek to be named on the birth certificate, despite the fact he could have been eligible to be.  The women sought a declaration that the mother’s partner was the second legal parent.

The court carefully considered the law on legal parenthood in such situations, which is set out in the HFEA 2008. The relevant provisions set out a clear framework as to in what situations and circumstances a mother’s partner (whether male or female) can be treated as a legal parent even if there are not genetically related to the child, rather than either the donor acquiring that status, or the child having no second parent in law. On the facts of the case, the court was satisfied that regardless of intentions, and what the couple wanted, there was no way in which the mother’s partner could retrospectively be attributed legal parenthood under the provisions of the act. Sadly, this is a position we have seen a number of times.

The judgment makes it clear that there would have been a route, prior to conception/birth for the mother’s partner to acquire legal parenthood, had the right steps been undertaken, but the omissions could not be fixed after the event. The case noted that a parental relationship can arise by way of social and psychological parenthood, which can in itself be worthy of recognition and protection, but is of course distinct from legal parenthood itself.

The overarching message from the decision is that it is crucial for anyone considering sperm donation to understand fully the law of parenthood, parental responsibility and contact before they enter in to any arrangement, to minimise the chances of such problems arising.  As it is not mandatory to have a donation agreement, it is something some see as unnecessary, especially if it brings with it added expense, but whilst they do not give legally binding protection, their use and value should not be underestimated. 
The full judgment can be viewed here.

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Cara Nuttall is a Partner located in Manchester Londonin our Family department

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