Pre-conception Agreements, Sperm Donation and Parental Responsibility

Blog written by Emilia Borys.

Conceiving a child from donated sperm is considered to be a miracle, especially for couples who struggle to have children naturally. With that said, can also create many problems around parental and financial responsibility, and their rights in the future, should that couple decide to separate.

The Human Fertilisation and Embryology Act 2008 sets provisions that cover the process and responsibilities for heterosexual and same-sex couples. These provisions provide lawful guidance for individuals, those who are married or in a civil partnership, and those who are unmarried or not in a civil partnership, to name a few.

Before we explore these, we should first rule out any grey areas with sperm donors’ parental rights and responsibilities.

Donor’s parental rights and responsibilities

If the sperm donor is registered with a UK clinic and donates his sperm to unknown recipients, the donor will not be the legal father of any child conceived. Legally, this means that he is not liable for parental or financial responsibility and has no rights to any children.

However, where the donor donates via a clinic to someone he knows, may then become more complicated. Depending on the circumstances with the recipient, said donor may become the legal parent, should there be no other legal parent to any children conceived. This of course depends on any paperwork signed at the clinic before insemination, and what everyone’s intentions are in their role. It’s important to note, that these are not normally classed as a pre-conception agreement, but this does depend on the contents of the contract.

There are also different rules where the conception took place at home. Whether the recipients are married or not, and the sperm donor donates through sexual intercourse, otherwise known as ‘natural insemination’, will therefore always be the legal father of any children conceived, regardless of what the parents agree or what is recorded on the birth certificate. The rules are again different if insemination took place artificially and the recipients are married or in a civil partnership, which in this case will not make the sperm donor the legal father.

Married couples and couples in a civil partnership parental rights and responsibilities

It is fairly straightforward for married couples and couples in a civil partnership, provided that the other parent (not the parent providing an embryo and giving birth) has consented to the treatment taking place. The recipient couple will need to be married or in a civil partnership during the artificial insemination taking place, for both to have automatic parental rights and responsibilities.

Unmarried couples and couples not in a civil partnership

A female receiving the sperm will of course always be the mother, if there are no complications around the origin of the embryo. Determining who is the other parent of any children, however, can be more problematic for recipient couples who are not married or not in a civil partnership. In these cases, it’s recommended to co-operate with, if any other intended parent on both party’s role and responsibility. Normally what happens before artificial insemination takes place, the other parent provides a statement that they wish to be the intended other parent, to the clinic providing the treatment.

The female partner having the treatment will also need to provide consent that they identify their chosen partner, male or female, as the other parent. Before insemination takes place, however, the female receiving the sperm can change her mind on who the other parent is, provided of course that the new chosen partner has consented to this arrangement.

On the other side, the other parent can also change their mind on assuming the other parental role, providing that it is done so before the insemination took place.

As fickle as this may sound, these notices must be issued to all parties, including the clinic providing the treatment.

So, what is a pre-conception agreement?

These can be entered into between the female receiving the sperm and the other intended parent before the treatment takes place so that everyone involved is clear on their roles and responsibilities to any children conceived.

Pre-conception agreements normally cover things like the other parent’s involvement in the child’s day to day life, their influence over religious views and education, as well as financial arrangements and liability.

Ultimately, a pre-conception agreement rules out any uncertainty and provides clear rules for both parties entering the agreement. If at any stage before the insemination takes place that either party is unhappy, this agreement can be terminated.

It’s important for both parties to be aware that a pre-conception agreement is not legally binding but can be used as evidence in a court of law should there be a dispute over parental responsibility.

Please be aware that nothing in this article constitutes legal advice on which you should rely. This article is published for general information only and professional legal advice should always be sought before taking any action related to or relying on the content of this article. Our Terms apply to this article.