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Sperm donors given leave to apply for contact with children

Case demonstrates the importance of agreeing plans before fertility treatment commences

In the High Court Mr Justice Baker has ordered that known sperm donors can apply for Children Act 1989 section 8 orders in respect of children, despite having no legal relationship with them under the Human Fertilisation and Embryology Act 2008.

Re G (A Minor); Re Z (A Minor) [2013] EWHC 134 (Fam), the first case of its type, involved two lesbian couples who were friends with a gay male couple.  All three couples are in civil partnerships. One of the male couple is the biological father of both the children of one of the lesbian couples, the other man is the biological father of one child who is being brought up by the second lesbian couple.

The men applied for leave to make an application for residence and contact orders in relation to their respective children. The applications were opposed on the basis that they would infringe on their family units. Baker J allowed each donor to pursue his application for a contact order, but refused the application to pursue residence of each child.

The judgment established that when considering whether or not a known donor could apply for orders relating to residence, contact and parental responsibility for a child, the court must take into consideration factors including the following; the nature of the application, the applicant's connection to the child and the potential for disruption to the child's life. However, the court will be cautious to protect the de novo family and their Article 8 rights to a family life.

The solicitor for the parents of G, Kevin Skinner of Goodman Ray, said:

"The much anticipated introduction of the Human Fertilisation and Embryology 2008 for the first time ensured that same sex parents were recognised in the same way as heterosexual families. In this decision, the Judge has applied welfare principles in deciding whether a known donor should be allowed to ask the court to make orders confirming their relationship with an otherwise unrelated child, when, historically, there has been a relationship.

"Although the Judge's decision makes clear that the family unit should be protected, the possibility of donors being able to apply for courts orders will be a scary prospect for many parents, both gay and straight. What is crucial is that anyone planning on having a child through the use of fertility treatment should make sure that proper plans are in place before the process begins. If a known donor is going to be used, then the party's intentions should be clearly recorded, before treatment starts, with the help of an experienced family lawyer."

Natalie Gamble of Natalie Gamble Associates, who acted for the couple in Z, agreed:

"Lesbian mothers need to understand that being named on the birth certificate does not give absolute protection. Conceiving with a known donor will always carry some level of risk if things don't work out as intended, so mothers should be very careful about giving any level of contact unless they are absolutely sure.

"Gay fathers who act as known donors need to understand that their legal position may be more fragile and uncertain than they think. Men who want to be fully involved fathers will not have any automatic rights if there is a dispute.

"Everyone going into known donation or co-parenting arrangements should be crystal clear about their expectations from the outset. Setting the strongest possible foundations at the start is the best way of avoiding later problems. One way to do that is to put an agreement in place, but the real key is good communication – an agreement is a means to that rather than an end in itself."

Madeleine Reardon of 1 King's Bench Walk (instructed by Withers LLP) represented the donor in G. Deirdre Fottrell of Coram Chambers (instructed by Goodman Ray) represented the parents in that case. Alison Russell QC of 1 Garden Court (instructed by Natalie Gamble Associates) acted for the parents in Z. Samantha King of 4 Paper Buildings (instructed by Burton Woods) acted for the donor in that case.  

The judgment can be read here..