The parenthood trap: the risks of private donor arrangements

Long NHS waiting lists, eligibility restrictions, and the high cost of private fertility treatment are driving an increasing number of intended parents to seek private sperm donation arrangements to start a family.

Private donors are found through social media, online forums or personal contacts. While these arrangements can seem simpler, cheaper and more personal than using a fertility clinic, they can create serious legal problems if the rules around parenthood are not fully understood.

Why legal parenthood matters

Legal parenthood is much more than a name on a birth certificate. It creates a lifelong legal relationship between a parent and child, affecting:

• Financial responsibility for the child / child maintenance obligations;

   

• Inheritance rights;

• Nationality and citizenship; and

• Entitlement to make applications to the family court in respect of the child.  

The crucial point is that legal parenthood is determined by law, not by what the adults involved intended or agreed, even if this is written down and signed. 

Legal parentage must also not be confused with parental responsibility, which is a separate concept and relates to the practical responsibilities for a child. Ensuring that the second legal parent acquires parental responsibility is extremely important to ensure parity in decision-making power. *Please note that parental responsibility is not considered in this note.

Who is a child's legal parent?

In England and Wales, a child can only have two legal parents.

The person who carries the pregnancy is always the child's legal mother, regardless of whose egg was used.

Determining the second legal parent is more complex. It depends on how conception took place and the parents' relationship status at the time of the child's birth.

Many intended parents assume that agreements made before conception will determine who the legal parents are. Unfortunately, that is not always the case.

Why private donor arrangements can be risky

When conception takes place through a UK licensed fertility clinic and the correct process and consent forms are completed, intended parents can ensure that the intended father or same-sex female partner is recognised as the child's second legal parent. In these circumstances, the sperm donor cannot be treated as the legal father.  

Private donor arrangements are different.

If conception takes place outside a licensed clinic, the legal outcome is not so straightforward. For example:

• If unmarried, the intended parent cannot automatically be recognised as the child's second legal parent and cannot be named on the birth certificate. The sperm donor may instead be treated as the child's legal father.

• The unmarried intended parent would need to adopt the child to become their second legal parent. 

• If the intended parent is married or a civil partner to the mother, they can be registered as the child’s second legal parent, but the sperm donor could seek to challenge this through the family court.

These outcomes often come as a shock to couples who believed they had created a clear agreement before conception.

The potential consequences

What may initially seem like a cost-saving option can become far more expensive emotionally and financially if problems arise.

For example:

• If the relationship breaks down, the intended second parent may have no automatic rights in relation to the child, putting them in a very vulnerable position when seeking to coparent. 

• The legal mother may be unable to claim child maintenance from the person who was intended to be the second parent, because that person is not legally recognised. 

Key takeaways

1. Use a licensed fertility clinic wherever possible
Treatment through a licensed clinic provides the greatest certainty about legal parentage and ensures intended parents complete the necessary legal consents before the child's birth.

2. Do not rely on informal agreements
Good intentions and written donor agreements do not override the legal rules on parenthood.

3. Take specialist legal advice before conception
Understanding the legal position at the outset is far easier, and often much cheaper than trying to resolve disputes later. 

This is a complicated area of law and early specialist legal advice is absolutely crucial to ensure that the child’s intended second parent is also recognised legally. 

How can Porter Dodson help?

If you have any questions about legal parenthood or any of the points raised in this article, Isobel Massey and our specialist family lawyers can advise and support you throughout the entire process. Get in touch to discuss your situation.