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Known Sperm Donor and Co-parenting Arrangements – a cautionary tale

Rose-Marie Drury, Senior Associate with Mills & Reeve LLP, considers the legal issues for parties involved in such arrangements.

Rose-Marie Drury, senior associate, Mills & Reeve LLP

Rose-Marie Drury, Senior Associate with Mills & Reeve LLP

There are many varied reasons why individuals and couples seek either a known sperm donor or a co-parenting arrangement. In this article the term 'known sperm donor' is used to refer to a man donating sperm other than as an anonymous donor through a sperm bank with a licensed UK fertility clinic, and 'co-parenting' to refer to two or more people who intend to parent a child together but at least one is not a legal parent and/or they have not been in a relationship together. For some such an arrangement is intended to provide a child with two or more co-parents who all play a role in the child's life or to provide an opportunity for the child to get to know their biological parent or ensure a donor with particular characteristics or background. For some it may also be a financial decision given the cost of donor insemination in a fertility clinic and limited availability of NHS treatment.   

Unfortunately a review of the facts from the case law suggest that frequently known donor sperm/co-parenting arrangements are entered into without any of the parties taking legal advice.  Disputes may arise at a later stage as to the very intentions of the arrangement, often with one party alleging there was no intention they would be considered a donor or co-parent and the other alleging just that. What follows is therefore somewhat a cautionary tale. Anyone advising clients considering a known donor or co-parenting arrangement should advise them to think about the issues and complications these arrangements raise before conceiving a child.

Whatever the reasons for the arrangement there are two key issues for family lawyers to consider:

  1. Who is a legal parent at birth where a known donor is used or there is a co-parenting arrangement? 
  2. What impact does the fact that there was a known donor or co-parenting arrangement have on disputes regarding arrangements for the child, parental responsibility and financial support for the child? 

Who is a legal parent at birth where a known donor is used or there is a co-parenting arrangement?
Legal parentage is of course a fundamental relationship for the child and the parent. It will impact upon a huge range of areas such as nationality and inheritance.

The mother – In English law the mother will always be the birth mother regardless of whether she has any genetic connection to the child, whether she carries the child as a surrogate or where in the world she gives birth to the child (s33 HFEA 2008). For example, a woman who carries a child with donated eggs will still be the legal mother.

The father/second legal parent – Who is the legal father or second legal parent will depend upon a consideration of the relevant facts. The law set out below reflects the legal position since the relevant provisions of the HFEA 2008 came into effect on 6 April 2009. It assumes all parties remain alive at the time of conception.

The first issue is the method of conception. Where conception takes place as a result of sexual intercourse the biological father will be the legal father even if he has only intended to act as a sperm donor. For example, this was the issue in M v F and H (Legal Paternity) [2013] EWHC 1901 (Fam) where Jackson J found that the child had been conceived by sexual intercourse and not artificial insemination.

If conception did not take place naturally but took place artificially using donor sperm, the second issue to consider is whether or not the mother was married or in a civil partnership at the time of conception. If the mother is married/in a civil partnership at the time the artificial insemination took place unless it is shown that the spouse/civil partner did not consent, then her spouse/civil partner will be the legal father/second legal parent regardless of whether they are a biological parent or not (s35 and s42 HFEA 2008). For example, in Re G; Re Z [2013] EWHC 134 (Fam) Z and G were born to civil partners who consented to the artificial insemination and the non-birth mother in each couple, and not the biological fathers, was therefore the second legal parent.

If the mother's spouse/civil partner did not consent or she did not have a spouse/civil partner, the third issue to consider is where conception took place. If conception took place at a UK licensed fertility clinic, the known donor is being treated by the clinic as if they were an anonymous donor, the mother and another person (for example her partner) have given written consent to that person being treated as a legal parent and neither have withdrawn their consent prior to treatment taking place (assuming all of the other requirements the clinic has to comply with have been met), then that person will be the father/second legal parent (s36-38 and s43-46 HFEA 2008) There is no requirement for the parties to be in a relationship together although the parties cannot be in prohibited degrees of relationship to one another.

Commonly the other parent will be the mother's partner but it would be possible for the other parent to be someone the mother intends to co-parent with but who is not the biological father.

If no consent has been given for another person to be treated as a legal parent, then the child will have just one parent – their mother. So, a known donor could donate sperm for a single woman to use at a fertility clinic (on the basis that he is treated by the clinic as if he were an anonymous donor).
If the mother's spouse/civil partner did not consent or she did not have a spouse/civil partner and conception did not take place at a UK licensed fertility clinic, then a known sperm donor will be the legal parent. Where known sperm donors have entered into an arrangement with an unmarried/non civil partnered woman with insemination taking place at home, that man will be the legal father of the child. It is not possible with home insemination to consent to another person being the legal parent.

To what extent is the fact that there was a donor sperm or co-parenting arrangement relevant to disputes arising in respect of the child?
Who is a legal parent is a key issue but it is not the end of the matter. Family lawyers will be familiar with the different types of parenting roles recognised in Baroness Hale's judgement in Re G [2006] UKHL 43 which include genetic, gestational, social and psychological.

So, to what extent does it matter whether someone is a legal parent or a known donor or a co-parent?

Child arrangements orders
First leave may be required for an application for a child arrangements order. In a case involving a donor/co-parenting arrangement (assuming there are no pre-existing orders), the most relevant categories of person permitted by s10 Children Act 1989 to make an application are:

There is within section 10 no special category permitting an application without leave, if it would otherwise be required, for those who have intended to co-parent or who are biologically related to the child but not a legal parent.

Attempts have been made to argue that allowing leave for an application by someone who was to be a 'donor' or 'co-parent' but not a legal parent undermines the intentions of the HFEA 2008. That argument was roundly rejected by Baker J in Re G; Re Z [2013] EWHC 134 (Fam). In that case the biological fathers were not legal parents, two sets of same-sex female couples were the children's legal parents. Baker J commented that '[s]he is correct that no other person is absolutely excluded from seeking redress and I accept her submission that biological fathers who are deprived of legal parenthood by the 2008 Act should be treated no differently. Had Parliament intended that a person in a position of the applicants in this case should be entirely stripped of legal remedies, it would have expressly provided that a person in the position of S and T in these circumstances would be disqualified even from seeking the court's leave.'

The application for leave will be determined in the usual way on a fact-specific approach taking into account the criteria in s10(9) Children Act 1989 and considering the merits of the proposed application. The fact that a person is a genetic or social or psychological parent does not mean that their application for leave will necessarily be granted. In Re G; Re Z, S's application for leave to apply for a residence order was rejected on the basis that Baker J did not consider S had a good arguable case for the same.

Where the leave application is granted, there is no guarantee of a substantive order being made. The primary concern of the court will be the child's welfare.

The fact a person is a biological parent but not a legal parent does not necessarily add additional weight to the application. As Black LJ commented in Re G [2014] EWCA Civ 336 in the context of a biological mother who had donated her eggs to the legal mother who was her then partner, 'the mere fact that the appellant is a genetic parent and/or that she played a parental role would not dictate the making of a shared residence order'.

Nor does the fact that it has been intended that a person will be a mere donor or a co-parent dictate the substantive order to be made. It is clearly helpful for parties to set out their pre-conception intentions so that everyone is clear about the expectations of the arrangement and can ensure their views are compatible before a child is conceived but they will not be determinative. In A v B and C [2012] EWCA Civ 285 Thorpe LJ rejected the submission that the adults' preconception decisions should be determinative and whilst Black LJ suggested it was sensible for adults to enter into agreements which detailed the arrangements for children born through these arrangements, she went on to state 'no matter how detailed their agreement, no matter what formalities they adopt, this is not a dry legal contract...above all what must dictate is the welfare of the child not the interests of the adults'.

In both A v B and C [2012] EWCA Civ 285 and Re G [2014] EWCA Civ 336 the court has expressly declined to give general guidance on how issues in this area should be determined with Thorpe LJ in A v B and C rejecting notions such as 'secondary parents' and 'primary parents' and reliance on stereotypical norms. These cases therefore remain very fact specific and each must be carefully evaluated against the welfare checklist. Pre-conception intentions and arguments as to genetic, gestational, social and psychological parents will be relevant as part of a consideration of the facts but they must be viewed within the context of the welfare checklist.

Parental responsibility
Applications for parental responsibility in donor sperm and co-parenting arrangements may arise in the context of an application by a legal parent under s4 or 4ZA or by a step-parent under s4A or under s12 Children Act 1989 by a person who has applied for a child arrangements order.

There is no difference in an application under s4 or s4ZA or s4A in a donor or co-parenting arrangement than any other case although the particular dynamics of the family unit and the role each legal parent will play in exercising parental responsibility may be different from those that arise in a two-parent family unit. 

Where the application for parental responsibility is by a non-legal and non-step parent (an application which derives from an application for a child arrangements order) following Re G [2014] EWCA Civ 336, the key consideration in determining the application will be the paramountcy of the child's welfare whilst taking into account the role each parent can play in the child's life. This approach was recently followed by Russell J in Re B [2017] EWHC 488 (Fam) in granting the non-legal mother parental responsibility, albeit her use of parental responsibility was limited so that she did not approach the child's school or medical practitioner for information given the risk that might pose to the child's welfare.

Financial support
The position in relation to financial support is not discretionary or based on the child's welfare.

Any person who is a legal parent cannot rely on the fact that it was intended and agreed they would only be a donor or that they do not have a genetic relationship to avoid providing any financial support to their child through the CMS or where relevant under Schedule 1 Children Act 1989. Although it was not a donor case as McFarlane LJ commented in Re M-M [2014] EWCA Civ 276, 'the father decided that he did not wish to play any direct part in [the child's] life and my understanding is that he has neither met [the child]  nor communicated with her.  That, of course, was his choice.  What was not his choice was to walk away from any liability that he may have to provide financial support for [the child]'. In this author's experience it sometimes comes as a surprise to donors that despite the very clear agreement at the time that they would be nothing more than a donor, they are later landed with an application from the CMS which they cannot avoid.

However, a claim to the CMS cannot be made against a donor or co-parent who is not a legal parent. It may still be possible for a non-legal parent to have a liability to support the child pursuant to Schedule 1 if that person has been married/civil partnered to a legal parent and the child has been treated as a 'child of the family' as defined by s105(1) Children Act 1989.

If there has been no marriage/civil partnership the fact that a non-legal parent may have treated the child as a child of their family, or even that they may have a shared care arrangement, is not sufficient to make a claim. In T v B [2010] EWHC 1444 where a claim against the mother's former same-sex partner with whom the child had lived for 7 years was unsuccessful on the basis that 'Schedule 1 is confined to those who have the status of parent (as expressly extended by paragraph 16).  It is not in my view a discretionary welfare informed decision…but a matter of status.' (Moylan J).

However, the same restrictions do not apply to the applicant under Schedule 1. The applicant can be any person who is named in a child arrangements order as a person with whom a child is to live (Schedule 1 paragraph 1(1)). So a non-legal parent who has a child arrangements order specifying that the child lives with them will be able to make an application against a legal parent under Schedule 1 even though that legal parent could not make an application against them.

Known donor and co-parenting arrangements raise clear issues about legal parentage. Those considering entering into these arrangements need to consider carefully who will be a legal parent with the implications that this important relationship carries. Careful consideration should be given to whether a donor or co-parenting agreement would assist. Whilst it will not bind the court it will help to focus those involved on the issues at hand and the implications of the arrangement they are intending to enter into.

The arrangements also raise issues about the extent to which a non-legal parent should, or is entitled, to be involved in a child's life. There are additional hurdles a non-legal and non-step parent may face such as requiring leave and the way in which an application for parental responsibility is derived. In dealing with the substantive applications, the child's welfare remain the key issue and each case needs to be carefully evaluated on its facts.

More limited is the ability to require a person to provide financial support in respect of a child which does not reflect the full spectrum of family arrangements. Applicants may be donors or co-parents but respondents must be a legal parent or a step-parent. A co-parent cannot be required to provide financial support for their child.