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25 October 2013   |    Artificial insemination/assisted conception(IUI, IVF), Parenting, Surrogacy, Using a sperm donor/sperm bank
This web page contains information about the legal definition of parenthood, about donor insemination using a clinic or “do-it-yourself” approach, pre and post 2009 law for civil partners, surrogacy and parental orders.
The information is adapted by the Equality Network from articles by Caroline L S Henderson, previously solicitor in the Family Law Unit at Maclay Murray & Spens LLP and now at MTM Family Law LLP.
The legal definition of parenthood in circumstances where a child is born by assisted reproduction, including donor insemination, is complicated.
The legal definition of the mother of a child is the one who gives birth to the child, whether the child is conceived naturally or following assisted reproduction. It does not matter whether she has any genetic connection with the child – in law she is regarded as the mother “for all legal purposes” at the time of the child’s birth.
The legal status of ‘mother’ will only be lost through adoption (or in the case of a surrogate mother, through the making of a parental order, detailed below).
The child’s other parent in a legal sense, whether male or female, will depend on the genetic material used in the assisted reproduction, but more importantly, will depend on the marital or civil partnership status of the mother.
The main determining factor of who a child’s other legal parent is at the time of the child’s birth is whether or not the mother is married or in a civil partnership. If she is, then it is her husband or civil partner who will legally be presumed to be the child’s father or other parent at the time of the child’s birth, irrespective of whether he or she is biologically connected to the child or not.
This means that if a woman gives birth to a child conceived by donor insemination, then if she was in a civil partnership at the time of conception, she and her civil partner are the child’s legal parents. The sperm donor is not a legal parent of the child.
If a woman who is not in a civil partnership gives birth to a child conceived by donor insemination, the situation is more complex. The other legal parent depends on whether the donor insemination was done through a licensed fertility clinic, or was ‘do-it-yourself’.
If a licensed fertility clinic is used, the mother can nominate another person to be the child’s other legal parent – typically this would be her partner.
If the donor insemination was not done through a clinic, but was do-it-yourself, then if the mother is not in a civil partnership, it is the sperm donor who is the child’s other legal parent, not the mother’s partner.
The legal position of donor insemination is complicated. Whether or not your donor has any legal rights to a child conceived by donor insemination can depend on a number of things, including whether the sperm is used within the regulatory framework of the 2008 legislation or not (and that can include whether or not the donor is known to the woman), and how the insemination took place. But most importantly it depends on the legal status of the mother at the time of conception.
If a woman gives birth to a child conceived artificially by donor insemination through a licensed clinic in the UK then the sperm donor is not a legal parent of the child. The child will have one legal parent at the time of birth, that is, the birth mother.
If the option of a licensed fertility clinic is used, a single lesbian mother can nominate another person to be the child’s other legal parent. Typically, this would be her partner.
If however the woman who gives birth is married or in a civil partnership at the time of artificial insemination through a clinic, then her husband or civil partner will automatically be regarded as the child’s father or other parent in law (provided they have consented to the treatment). In these circumstances a child will have two legal parents at birth.
Anonymity of the sperm bank donor (at the time of conception, but only insofar as the legislation provides) ensures that if the donor insemination is carried out at a licensed fertility clinic then the donor will not acquire legal rights to any child born as a result of this method of conception and will not be regarded as a legal parent to the child.
If a woman gives birth to a child conceived artificially by insemination from a known donor through a clinic then the most important factor in determining legal parenthood is the marital or partnership status of the recipient of the donor’s sperm.
If the woman is single, the donor may still be regarded as the legal father even if he has signed donor consent forms. The known donor can be named on the birth certificate.
If the birth is registered jointly with the donor, he will automatically acquire parental responsibilities and rights in relation to the child. He will be relinquishing any treatment in law of him as a licensed sperm donor and will have identical rights and responsibilities to the child as that of the mother.
“Do it yourself” donor insemination
A sperm donor who donates sperm outwith the regulatory framework of the 2008 Act (not through a licensed clinic in the UK) is the legal father of any child born as a result of artificial insemination. This is the case if the woman is single, even if she is in a relationship.
If this is not the intention of the parties then conception should be undertaken at a UK licensed clinic and the relevant parenthood election forms should be completed.
The partner (rather than civil partner) of a lesbian conceiving at home would have no legal rights to a child born by these means and would require to apply for parental responsibilities and rights as a “relevant person” in terms of the Children (Scotland) Act 1995 or consider adoption of the child.
Pre and Post 2009 law for civil partners
The law for donor insemination affecting civil partners changed on 6th April 2009. If a child was conceived after 6 April 2009 in cases where the woman is married or in a civil partnership and her husband or civil partner has consented to the treatment, it would be the husband or civil partner who would be regarded as the second legal parent. They can be named on the birth certificate. The insemination must be by way of artificial means, either through a licensed clinic or “do it yourself”.
If the child was conceived through “do it yourself” insemination before 6 April 2009 the civil partner has no automatic recognition as a legal parent. She would be in the same legal position as the partner of a non civil-partnered lesbian and would have the options referred to above.
Finally, it is important to note that any person who is involved in parenting a child may apply to the court as “a relevant person” to be granted at least some legal parental responsibilities and rights, for example the right to have contact with the child. The court will only grant this where it thinks such an order would be in the child’s best interests and that it is necessary for such an order to be made.
There have been cases where a sperm donor who was not named on the birth certificate has later been granted parental responsibilities and rights by the court after he had played a role in looking after the child. The court can grant such an order even if the mother and her partner oppose it.
In such circumstances parties may wish to consider the legalities of such an arrangement in advance by considering a Preconception Agreement. This can limit any legal responsibilities a donor may have or, conversely, a Co-parenting Agreement can ensure the donor’s status in respect of the child he intends to father.
Surrogacy and parental orders
Surrogacy is where a woman carries and gives birth to a child on behalf of another couple, with the intention that parenthood will be transferred to that other couple shortly after birth. This transfer is done by a ‘parental order’.
The Human Fertilisation and Embryology Act 1990 (‘the 1990 Act’) introduced the concept of a parental order. A parental order is the legal mechanism for transferring the status of ‘mother’ from the surrogate to the commissioning parents. The 1990 Act only provided for cases in which the commissioning couple were married.
Since 6 April 2010 under the Human Fertilisation and Embryology Act 2008, the category of people who can apply for a parental order was extended so that civil partners, and mixed-sex or same-sex couples living as partners in an enduring family relationship, as well as married couples, can apply for parental orders.
Before a parental order can be made various conditions require to be fulfilled. Parental orders will only be made where:
Other rules about surrogacy
The Surrogacy Arrangements Act 1985 prohibits the entering into or negotiating of a surrogacy arrangement on a commercial basis. In other words, the surrogate mother cannot be paid a fee for being a surrogate, although all her expenses related to the pregnancy can be paid by the commissioning couple.
It is criminal offence to negotiate a surrogacy arrangement on a commercial basis. It is not an offence for somebody to enter into an arrangement, but it is an offence for a third party brokering a surrogacy arrangement and to profit by helping someone else make a surrogacy arrangement.
Non profit making organisations such as COTS are legal so long as they do not charge for their services, although they may charge a membership fee. It is also a criminal offence in the UK to advertise that you are a third party willing to facilitate the making of a surrogacy arrangement, or that you are looking for a surrogate mother or are willing to act as a surrogate mother.
The Act also states that surrogacy agreements entered into in this country are unenforceable. This means that the surrogate mother always has the right to change her mind about the arrangement, and keep the child, up to the point where she agrees to the parental order, which will be at least six weeks after the birth.
If the surrogacy arrangement fails and the surrogate elects not to hand the child over following birth, an application to court (by either party) may be made to determine with whom the child should reside and what would be in the child’s best interests: would it be in the best interest of the child to reside with the surrogate or with the commissioning parents. Although unenforceable in the UK a surrogacy agreement can demonstrate the clear intention of the parties at the time the surrogacy arrangement was entered into which may be of relevance in determining a later dispute.
It may be possible to enter into a surrogacy arrangement in a country outwith the UK. However, there have been numerous cases which highlight the difficulties of dealing with the laws of two different countries, which may not be compatible. There are many countries in which a surrogacy arrangement is enforceable domestically, unlike in the UK. There are also countries where surrogacy agreements are illegal. This can effectively mean that a child may be regarded as ‘stateless’ and have no rights in either country.
There are very complex rules about bringing a surrogate child into the UK. The child will not automatically be a British citizen and in some cases parents may have to apply to the Secretary of State for special entry clearance – a time consuming process preventing the return of the new family unit back to the UK to start their new family life together. Specialist advice should be sought at the earliest opportunity.
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