Using a donor to conceive with your same sex partner – who are the parents and what can you do to protect yourselves?

Same sex partners pregnant

There are now many options for starting a family within a same sex relationship. A popular choice for many lesbian couples is to conceive with a donor who may or may not have a role in the upbringing of the child. For couples going down this route, two of the biggest questions are: ‘who will have legal responsibility for the child?’ and ‘how can we protect ourselves?’.

Here’s a lowdown on what you need to know:

If you are not civil partners or married

The law will automatically treat whichever of you is the birth mum as the legal mother (even if you are conceiving with your partner’s eggs). The non-birth mum will not have parental status automatically if you are not civil partners or married at the time of conception, but there are two options for her to acquire parental status:

  • The first is to conceive through a UK licensed clinic, whereby you each sign HFEA forms WP and PP before conception. This ensures that the non-birth mum is treated as the second legal parent from birth and means that you can both be named on your child’s birth certificate (regardless of whether you have used a known or unknown donor).
  • The second is for the non-birth mum to apply for step-parent adoption after birth. Whilst this is usually a straightforward process, it may be more complicated if your donor is known and particularly if he has been named on your child’s birth certificate. Step-parent adoption does not result in a new birth certificate, but rather an adoption certificate naming you both as parents and which supersedes the birth certificate.

If your donor is known, it is important that you have all agreed your roles at an early stage and, ideally, put this in writing within an agreement (please see further below).

If you are civil partners or married

The law will automatically treat both of you as the child’s legal parents, on the basis that conception is artificial and the non-birth mother consents. You will both be named on the birth certificate in due course. The donor is excluded from having any legal rights in respect of the child because the law can only provide for two parents.

Although the donor will not be your child’s parent (meaning he won’t be financially responsible or able to make parenting decisions) if he is known to you there is the potential for him to develop a relationship with your child. This may be what you envisage and plan for, or it may not.

Donor agreements

Whatever type of role your donor will have, it is sensible to put a written agreement in place at as early a stage as possible (ideally before conception). This will help to formalise your arrangement and ensure that everyone is in agreement about the part they will play in the child’s life. If there are disparities at this point, there is time to talk them through and make a decision about the best way forward.

Whilst written agreements are not legally binding (above and beyond what the law states), they are very useful as an early communication tool and as a source of referral later into the arrangement. If there is a dispute between you and your donor in the future and court action becomes necessary, having an agreement will set the scene and serve as evidence of everyone’s intentions at the outset.

It may be possible for your donor to formalise his status as an important adult in your child’s life, should the court intervene on a disagreement between you. Although he could not be made a parent, he may be given more formal rights to contact or decision-making, depending on the history of your arrangement and his involvement with the child to date.

If your donor is unknown (i.e. a clinic donor) he will not have the scope to become involved in your child’s life since he will not know who you and your child are. If you conceive at a licensed UK clinic, your child will have the right to discover the donor’s identity from 18, although the donor’s ability to secure any status in respect of your child will by then not be possible.

Donor arrangements can work extremely well with both known and unknown donors. Deciding which route to take is a very personal choice and will depend on the relationship you would like your child to have with their donor. Either way, thorough planning and awareness of the legal aspects before you go ahead will make for the most solid arrangement.

For more information about the law surrounding donor conception, the drafting of an agreement and the other aspects, contact Nicola Scott, our specialist fertility lawyer, who has been helping same sex couples with the legal aspects of their donor arrangements for over five years.

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