Our family law experts comment on the complexities around parental responsibility when undergoing fertility treatment. There are major differences in parental responsibility depending on whether you conceive at an HFEA licenced clinic, or if you take a different route.
Planning a family via artificial insemination is a profound and life-changing decision. Early legal advice about who will be your child’s legal parents is therefore crucial in order to avoid any significant and unintended consequences.
In this blog, we will look at some of the important legal issues raised when using donor sperm in fertility treatment. These issues include legal parenthood, and parental responsibility.
Under English law, only two people at any one time can be a child’s legal parents. Legal parenthood is relevant to inheritances, citizenship, and whether a person will have a duty to maintain a child financially.
Parental responsibility can be held by more than two people, and relates to all the ‘rights, duties, powers, responsibilities and authority’ a person has in relation to a child. It is important because anyone with parental responsibility must be consulted in respect of significant matters such as where a child lives, which school they attend, medical treatment, and religious upbringing. If people with parental responsibility do not agree about any of these issues, then they will fall to be determined by the Family Court.
Fertility treatment, sperm donors, and the significance of HFEA licensed clinics
When a donor has donated sperm via an HFEA licensed clinic, that person will have no responsibility for the child financially or legally. They also have no say in how the child is brought up (they will not be a legal parent, or have parental responsibility). Typically, this will be the desired outcome.
Where an unknown donor has donated sperm, but this has not happened via an HFEA licensed clinic, the situation is more complex, and potentially problematic.
Marital Status
If you and your partner are married or civil partners, then the donor will not be a legal parent. However, if you are not married or civil partners, the donor will also potentially be a legal parent with parental responsibility, and your partner will potentially have no rights in respect of your child.
This is a complicated area of law, and the legal rights of all involved will depend on a number of different factors, including how and when you conceived, and the extent of each person’s relationship with your child.
Parental Responsibility
Situations can and do occur where the partner of the carrying parent has no rights to the child (despite what might have been intended), and the sperm donor has rights that were neither planned nor anticipated.
Unfortunately, some of these situations then result in contentious and very expensive court proceedings.
It is also important for donors to note that it is not possible to ‘opt out’ of being the legal father when donating outside of an HFEA licensed clinic setting, and it is therefore vital for all involved to seek legal advice prior to any such donation taking place.
In these circumstances where the sperm donation takes place in a ‘DIY’ setting, it may also be necessary for the carrying parent’s partner to apply to the Family Court to adopt the child in order to achieve the desired legal status, though again this can become contentious depending on the approach taken by the sperm donor, who would be entitled in certain circumstances to be a party in the court proceedings.
Expert legal advice
If you have a query about the legal aspects of sperm donation and the legalities around parental responsibility after fertility treatment, or any other family law issue, please do not hesitate to contact us on 0161 969 3131 or fill in our contact form, and one of our team will be in touch.