What is the Law for Single Women using Sperm Donors?
The law for single women using donor sperm depends on the method of conception. For example if you conceive through a clinic your sperm donor will have no legal parental rights. However if you conceive by home insemination there is a chance your donor will be considered the legal father.
Increasingly single women are making the decision to have a child without a partner. There are a number of options available if you are considering having a child on your own such as:
Donor insemination
Treatment at a licenced clinic
Home insemination
Surrogacy
Partial surrogacy
Full surrogacy
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DONOR INSEMINATION
Licenced Clinic
As you will be carrying the child, you will be the legal mother, whether your egg is used or a donor egg. An egg donor is never considered a parent of the child.
If the sperm is provided by an unknown donor then he will not be considered the father of the child. If you use a known donor, providing they have signed the relevant consent forms provided by the clinic then he too will not be considered the legal father.
Any donor, not considered to be a legal parent, will have no legal rights to the child, they are not financially responsible for the child and will not appear on the child’s birth certificate.
If Using an Unknown Sperm Donor
When using donated sperm at a clinic, the clinic carry out all of the necessary paperwork to ensure that your sperm donor has no rights or responsibilities in relation to your child. However, any child conceived using sperm which was donated after 1 April 2005 has the right, upon attaining the age of 18 years, to find out identifying information about the donor, such as their name and address. This does not alter your parental status. Similarly, your anonymous donor could seek to find out how many children have been conceived from their sperm, whether they are boys or girls and what year they were born. They cannot, however, find out any identifying information about your child. All this information is stored on a central register with the Human Fertilisation and Embryology Authority.
If Using a Known Sperm Donor
If you use a known donor then of course you will already have information about the donor which you may choose to share with your child. If you do not then at 18 the child can seek identifying information about the donor as all the information is stored on the central register (in the same way as unknown sperm donors).
If you use a known sperm donor and wish to regulate and agree the role, if any, the donor is to have in the child’s life then it is advisable that you put in place a “Sperm Donor Agreement” or a “Co-Parenting Agreement” (please see below for further information).
Home Insemination
As you will be carrying the child, you will be the legal mother of the child.
When insemination takes place at home the donor is the legal father, regardless of whether the insemination was by artificial means or not. He will be financial responsible for the child and will also have rights to the child.
The donor will not automatically acquire parental responsibility as he would need to be named on the birth certificate to acquire this. However, he does still have rights even if he does not have parental responsibility.
If your donor is known to you it is important to regulate and agree the role, if any, the donor is to have in the child’s life. It is advisable that you put in place a “Sperm Donor Agreement” or a “Co-Parenting Agreement” (please see below for further information).
Sperm Donor Agreements
When using a known sperm donor it is advisable to draw up a Sperm Donor Agreement between you and the donor outlining how the sperm is to be used and what involvement, if any, you would like the donor to have in the child’s life. A Sperm Donor Agreement is designed to protect you, the donor and the child.
Preparing a Sperm Donor Agreement is useful as it encourages you to consider all the issues that using a known sperm donor can create. It is always advisable to consider all of the issues at the start so that any potential disputes can be avoided.
The following are some of the issues to consider and include in the agreement:
• Who will be named on the birth certificate
• What legal applications will be made after the birth, e.g. adoption orders
• Financial responsibility for the child
• Provision for future donations to provide for future siblings
• Whether the child should have a right to contact the donor
• Whether the donor has the right to contact the child
This list is not exhaustive and you may have other specific things in mind that you want to include in the agreement.
It is important to keep in mind that Sperm Donor Agreements are not legally binding in the UK as any dispute involving a child requires that the court consider the best interests of the child. However, if all parties take independent legal advice before entering into the Sperm Donor Agreement the court will give a great deal of weight to the agreement.
Co-Parenting Agreement
The term “co-parenting” is often used to describe a situation where two or more people, not in a relationship, decide to start a family and raise the child together.
If a co-parenting arrangement is envisaged then a co-parenting agreement should be made.
A co-parenting agreement is an agreement between all of the parents outlining how the child is to be raised. Preparing a co-parenting agreement encourages you to consider all of the issues that a co-parenting arrangement can create. It is always advisable to consider all of the issues at the start so that any potential disputes can be avoided.
The following are some of the issues to consider and include in the agreement:
• Who will be named on the birth certificate
• What legal applications will be made after birth, e.g. parental responsibility, residence orders
• Who the child will live with
• When the child will have contact with the other parent(s)
• Financial responsibility for the child
• Decision making during pregnancy
• Decision making once the child is born
• Provision for future siblings
• What happens if the relationship breaks down
This list is not exhaustive and you may have other specific things in mind that you want to include in the agreement.
Parenting agreements are not legally binding as any dispute involving a child requires that the court consider the best interests of the child. However, if all parties take independent legal advice before entering into the parenting agreement the court will give a great deal of weight to the agreement.
SURROGACY
Surrogacy is when a woman (the surrogate mother) agrees to bear a child for another and surrender the child at birth.
There are two types of surrogacy:
• Partial (also known as traditional or straight surrogacy) – this method uses the egg of the surrogate mother and donor sperm. This can be performed in an IVF clinic or by artificial insemination at home. In this situation the child is not biologically related to you and is biologically connected to the surrogate mother.
• Full (also known as gestational or host surrogacy) – this method uses either your egg or a donor egg combined with donor sperm. In this case an IVF clinic is always required. A child conceived by this method has no biological connection to the surrogate mother.
Surrogacy and the Law in England and Wales
Although surrogacy is legal in England and Wales, it is restricted by various laws. For example, the Surrogacy Arrangements Act 1985 expressly forbids advertising for a surrogate or advertising to be a surrogate. A breach of this Act is a criminal offence punishable by a fine, imprisonment or both. It is also an offence to broker a surrogacy arrangement on a commercial basis.
Surrogacy agreements are unenforceable in the courts in England and Wales, even if a contract has been signed and the expenses of the surrogate have been paid. The family courts have, in practice, proved sympathetic to intended parents applying to enforce a surrogacy arrangement but they have a wide discretion to act in the best interests of the child which means there are no guarantees.
Who are the legal parents of a child born through surrogacy?
Under English law, the woman who carries the child is the legal mother. Therefore the legal mother of a child born through surrogacy is always, at birth, the surrogate mother. This means that in surrogacy cases the intended mother has no recognition as a parent even if she is the child’s biological mother.
If the surrogate is married or in a civil partnership, her husband/civil partner will be the legal father/second parent of the child unless he/she did not consent to the surrogacy treatment, irrespective of the biological relationships. This means that the sperm donor has no automatic claim to legal parenthood even though he is the biological father.
The position is different if the surrogate mother is single or widowed at the time she conceives (or if her husband or civil partner does not consent to the arrangement). The surrogate will still be the child’s legal mother but the sperm donor will be the legal father.
If the surrogate is based abroad that her country’s laws will govern who the parents of the child are in that country, e.g. in some states in the US a pre-birth order can be obtained confirming that the intended parent(s) are the legal parents before the child is even born. This does not influence the UK position and so in the UK the surrogate, and her husband/civil partner, will still be considered the legal parent(s).
Who Goes on the Birth Certificate?
Only the legal parents can be named on the birth certificate where the birth is registered in the UK. The surrogate mother will register the birth and she is recorded as the child’s mother.
If the surrogate is married, her husband is recorded on the birth certificate as the father. If the surrogate mother is in a civil partnership, her same sex partner is recorded as the second parent.
If the surrogate mother is single, the sperm donor can be named on the birth certificate, although he must attend the birth registration in person together with the surrogate mother for this to happen. If he does not only the surrogate mother will be on the birth certificate.
How Does the Intended Mother Obtain Legal Rights to the Child?
It is important to take steps after the birth to acquire parental rights and extinguish the legal parenthood of the surrogate, and where appropriate, her husband or civil partner.
Currently, single people cannot apply for parental orders as one of the criteria for obtaining a parental order is that you are married, in a civil partnership or in an enduring relationship.
There are alternative court orders that can be obtained and specialist legal advice should be sought. The most commonly sought orders are as follows:
1. Adoption
An adoption order terminates the parental status of the surrogate, and if relevant her husband or civil partner, and gives permanent legal parental status to the intended parent. This is therefore the closest alternative to a parental order.
If you used a domestic surrogate (i.e. based in the UK) then you can apply to the court for an adoption order once you have lived with the child for six months. Three months notice must be given to your Local Authority before the court application can be made. In practice therefore you must wait until the child is three months old before beginning the adoption process. Once notice has been given to your Local Authority, social services will assign a social worker to visit you at your home and prepare a detailed report for the court. This process is relatively simple although if there is a legal father, he too will need to be involved in the process as he must consent to the adoption order being made. Once the report has been completed you will need to attend a court hearing where a judge can make the adoption order.
If your surrogacy took place internationally then whether the adoption route is available to you will depend on the laws of the country where the surrogacy took place, e.g. if the surrogate is in California then State Law says that the intended parent (s) is the parent of the child. Therefore California will not co-operate with the UK to adopt a child that California holds as already being the child of the intended parent.
It is crucially important that you take specialist legal advice before commencing an international surrogacy arrangement as a single person as some of the requirements of the adoption process have to be carried out prior to the child being born. Failure to do so may unknowingly constitute a criminal offence.
2. Residence Orders
A residence order is a court order which primarily states who the child should live with. If you are granted a residence order then you will also acquire parental responsibility automatically. However, parental responsibility does not make you the legal parent of the child. In addition, a residence order does not extinguish the legal status of the surrogate mother (or her husband/civil partner if applicable). In effect, parental responsibility gives you equal parental status to that of the surrogate when it comes to making important decisions about the child’s life and welfare, such as where they should go to school, medical treatment etc. You are unable to use your parental responsibility to the exclusion of the surrogate mother and all important decisions relating to your child should be made in consultation with your surrogate. This is something to keep in mind if you have a difficult relationship with your surrogate.
3. Special Guardianship Orders
A special guardianship order is the middle ground between an adoption order and a residence order. Whilst a special guardianship order does not give you full legal parental status and does not extinguish the parental status of your surrogate, it does give you the power to exercise your parental responsibility to the exclusion of the surrogate mother and her husband/civil partner.
For tailored fertility law advice on your personal circumstances please contact Kimberley Davies at Lester Aldridge Law and say you are a member of Co-ParentMatch.com ([email protected])
Please click here for further information on Surrogacy Law.
Please click here for further information on Co-Parenting Law.