Donor Conception and Legal Parenthood

Who the Law Treats as a Parent

Legal parenthood after donor conception is fixed by Part 2 of the Human Fertilisation and Embryology Act 2008, not by genetics or by what the adults intended. It applies where a child was conceived by embryo transfer, the placing of sperm and eggs, or artificial insemination after those provisions came into force on 6 April 2009. Earlier treatment is governed by the 1990 Act.

The woman who carries the child is the legal mother, and no other woman is, even where a donated egg or embryo was used and wherever treatment took place. An egg donor is not a parent merely because she donated. A man who donates sperm through a clinic licensed by the Human Fertilisation and Embryology Authority (HFEA), with the written consent the law requires, is not the father. GOV.UK confirms that he has no legal obligation to the child and is not named on the birth certificate. A man whose own sperm was used is the child's father under the general law, wherever treatment took place and whether or not any clinic form was signed; the rules below on spouses, civil partners and unmarried partners decide who the other parent is where the sperm was donated.

A person the Act treats as a parent is a parent for all purposes, and a person it excludes is not a parent for any purpose. The HFEA notes that this affects a child's nationality and inheritance and your financial responsibility. We advise separately on British citizenship and on wills and probate.

Spouses, Civil Partners and Unmarried Partners

If the birth mother was married or in a civil partnership at the time of the insemination or embryo transfer, her husband, wife or civil partner is treated as the child's other parent unless it is shown that he or she did not consent to the treatment. This applies whether treatment took place in the UK or elsewhere. A marriage or civil partnership counts unless a judicial separation or separation order was in force at that time.

Where the sperm was donated, an unmarried partner is a legal parent only where no spouse or civil partner is treated as the parent and the agreed fatherhood or agreed female parenthood conditions were met at the time of treatment:

• the treatment was provided in the UK by a licensed clinic
• you each gave the clinic a signed written notice consenting to the partner being treated as a parent
• neither notice had been withdrawn, and the birth mother had not given a later notice naming someone else
• the partner was alive at the time
• you are not within the prohibited degrees of relationship to each other

The HFEA gives clinics form WP for the birth mother and form PP for her partner. Both must be completed before the insemination or embryo transfer and cannot be completed afterwards. Where a woman is the second parent, no man is treated as the child's father.

Parenthood is not the same as parental responsibility. A spouse or civil partner who is a legal parent shares it with the mother. An unmarried father or second female parent acquires it by being registered as the child's parent, by a parental responsibility agreement with the mother, or by court order.

Known Donors and Treatment Outside a Clinic

The protection for donors belongs to the licensed clinic system. GOV.UK states that a man who uses an unlicensed clinic to donate sperm will be the legal father of any child born from his donation under UK law. The same follows for a private arrangement at home, because the Act's protection depends on the written consent given within the licensed system. The exception is where the birth mother's spouse or civil partner is treated as the other parent: the Act then provides that nobody else is the father.

This matters most for unmarried couples. If you conceived with donor sperm by home insemination or at a clinic abroad, the agreed parenthood conditions cannot be met, so your partner is not a legal parent, however long you have raised the child together. A male partner whose own sperm was used is the father whatever the setting. The partner of a child's parent may be able to adopt: see step-parent adoption. If treatment has not started, our page on fertility law for intended parents covers what to settle first.

Surrogacy is different again. The surrogate is the legal mother at birth, and parenthood passes to the intended parents by a parental order or adoption. Our surrogacy law page explains the position.

Evidence and Common Problems

Most questions are settled by the clinic's records: the signed WP and PP forms, the treatment dates, the record of the information and counselling offered, and the donor's consent. Add your marriage or civil partnership certificate and the child's birth certificate. The HFEA advises asking the clinic for copies of your completed forms and keeping them safe.

The HFEA lists the errors that can leave a partner's legal parenthood open to challenge:

• forms not completed before treatment
• mistakes on the forms
• requested information left out
• the clinic not giving you the right information
• forms that have been lost

A defect does not always end the matter. In a 2015 judgment covering several families, the President of the Family Division held that the court can act on other evidence that a missing form was properly signed before treatment, and can correct a mistake that is obvious on the face of a form. Forms signed after treatment were held to be ineffective. Every case turns on its own evidence.

How a Declaration of Parentage Works

Where legal parenthood is uncertain or disputed, the court can be asked for a declaration under section 55A of the Family Law Act 1986.

1. We take the history: how and where conception took place, your relationship status at the time and what was signed.
2. We obtain the clinic's file and identify which provision of the 2008 Act applies to you.
3. If parenthood is secure, we confirm that in writing. If it is not, we advise on a declaration, adoption or a parental responsibility order.
4. The application is made on form C63 to the family court or the High Court, with the birth certificate. One of the people named must be domiciled in England and Wales or have been habitually resident here throughout the previous year. Court fees are set out on the GOV.UK court fees page.
5. We prepare your statements and exhibit the clinic records. Where the person concerned is a child, the court may refuse to hear an application it considers is not in the child's best interests.
6. If a declaration is made, the court notifies the Registrar General, who can authorise re-registration of the birth.

When Legal Advice Is Especially Important

Advice matters most where:

• you are unmarried, co-parenting or using a known donor, and treatment has not yet started
• a clinic has told you that your forms are missing or defective
• you are still married or in a civil partnership but plan treatment with a new partner
• you were treated abroad, or you live overseas
• your relationship has ended and parenthood is disputed alongside child arrangements
• your partner died before the embryo was transferred: registration as a parent depends on written consent given in life and your written election within 42 days of the birth

In that last case the Act treats the person who died as a parent only for the purpose of the birth register. The Registrar General may allow a late election where there is a compelling reason.

How RakLAW Solicitors Can Help

Our family solicitors at 42 Shad Thames in Southwark, a short walk from Tower Bridge, advise on donor conception as part of our adoption, surrogacy and fertility work. We start with a free 15-minute consultation, read the clinic records against the Act and tell you plainly whether your family's legal position is secure.

Where it is not, we prepare the application and the evidence and represent you at the hearing. RakLAW does not offer legal aid; our charges are on our family law fees page. Call 0203 345 2000 or book an appointment.