Mummy & Mummy or Mummy & Daddy?

So it seems like a great idea. Your two best lesbian friends ask you to donate sperm so that they may have a much wanted child. You, as a gay man, love the thought of being a dad, so consent. But before rushing ahead, Lee Trubshaw, Partner at solicitors Bradin Trubshaw & Kirwan LLP, says that it is vital all parties are fully aware of the facts and each person’s legal status:

LGBT people can become parents by co-parenting (two people agree to conceive and raise a child together even though they are not in a relationship), adoption, foster care, donor insemination and surrogacy. Fertility Law – an umbrella term which also covers same- sex parenting and sperm donation – is very complex so I will focus on the most recent changes to the law and how it affects lesbians and gays.

Human Fertilization and Embryology Act 2008

The Human Fertilization and Embryology Act 2008 is essentially an update of earlier acts to reflect the changes in modern society. On 6th April 2009 it was extended to include parenthood rules for same-sex couples whose children are conceived after this date.

It is completely legal for gay men (individually or as a couple) to enter into a co-parenting arrangement with a lesbian couple or single female friend, but the law regarding who the two legal parents are is more complex. How a child is conceived (penetrative sex, artificial insemination at home or IVF at a clinic) impacts on the individual’s legal status. For example, a gay male is automatically the legal father of a child born as a result of sex with a woman, irrespective of whether she is in a marriage or civil partnership. However, if the gay male donates sperm at either a licensed clinic or privately at home to lesbian partners who are civil partners at the time of conception, they are automatically the legal parents of their child. It is therefore vital that all parties agree by what means conception should take place to avoid later complications.

Unknown Donors and Information Disclosure

If you are considering donating sperm be aware that it is against the law to do so for financial gain.

As an unknown donor at a licensed clinic you will not be a legal parent to any child born from your sperm and will have no parental rights. Since 1 October 2009 though you do have the right to find out certain non-identifying information about children conceived using your sperm, for example whether the children are boys or girls and the year they were born. A child conceived as a result of your donation does conversely have the right to access information about you once they are 18 years old.

Known Donors

The situation becomes rather more complex if you are a known donor. Since 6 April 2009, where a lesbian couple is married/in a civil partnership a male is not the legal father if conception takes place at home or in a Human Fertilisation and Embryology Authority (HFEA) clinic. Unmarried/non-civil partnered lesbian couples can only conceive at a licensed clinic and must both sign parenthood forms before conception takes place, meaning that the couple is conceiving together from the outset. The same principles apply to donating to married and unmarried heterosexual couples. In every other case though, the donor will be considered the legal father with all associated rights/responsibilities. That is why it is a good idea to draw up a sperm donor agreement which is between the donor and recipient to help protect against pursuit for financial contribution for instance, though such agreements are not legally binding and the Courts will always consider what is best for a child in the event of a dispute.

Co-parenting Agreements

Similarly to sperm donor agreements, co-parenting agreements are not legally binding but do help co-parents set out and agree what each person expects from the arrangement, for example, where the child’s primary residence will be, who will be the legal parents, who pays for what, faith, education, discipline and what happens if circumstances change. A lawyer can advise and help draw up an agreement.

Disputes

There have been several high profile Court cases where relationships have soured and disputes have arisen. If parties are unable to agree then a Court has the authority to decide which parents(s) a child will live with (residence order); the amount of contact other parents have with a child (contact order) and for specific problems a specific issue or prohibited steps order may be made.

This area of law is extremely complex and constantly evolving. That is why I recommend that before entering into any form of pre-conception and parenting arrangements is important that all parties seek legal advice and think through the possible long term emotional and legal implications.

For advice on pre-conception arrangements, donor disputes, civil partnerships, same sex marriage, and other legal matters contact Bradin Trubshaw & Kirwan LLP on 01543 421840 for a consultation or email ljt@btksolicitors.com.