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Nearly 60,000 people benefit from invitro fertilisation (IVF) and donor insemination at HFEA licensed fertility clinics in the UK, and it is not uncommon for an unlicensed clinic or ‘at home’ informal arrangement to be used for sperm donation.
While the primary focus will undoubtably be on having a healthy baby, it is also important to think about your legal position as a parent. This may be important in the future if you should separate or divorce from your partner.
The legal position in regard to parental responsibility differs according to the method of assisted conception used. It can even vary depending on where you go to get medical help with conception, as licensed clinics provide more protection than unlicensed ones.
Being clear from the outset who will have parental responsibility can save a lot of heartache and legal expense in the future.
‘Parental responsibility’ is a legal term which reflects the rights, duties, powers, and responsibilities you have for a child. It gives the holder the legal right to make certain decisions about a child, such as which school they attend and if they will undergo medical treatment. More than one person can hold parental responsibility.
If you are attending a clinic licensed by the Human Fertilisation and Embryology Act 2008 (HFEA), then you should receive advice prior to conception, and this is the ideal time to establish clarity about parental responsibility via an agreement. Although preconception agreements are not legally binding, the courts have shown that they will give weight to them when asked to consider arrangements for children.
HFEA sets out a number of different scenarios and explains who will have parental responsibility in relation to an assisted conception.
This article outlines the position for invitro fertilisation and donor insemination.
The simplest situation is where a couple is helped to conceive with their ownegg and sperm. Here, the parents are in much the same position as if IVF had not been used:
If IVF also involves egg or sperm donation, then the rules become more complex.
If conception has been achieved with an egg from a donor and:
Where a same sex male couple uses an egg donor, this would be treated as a surrogacy and is beyond the scope of this article.
If conception has been achieved with sperm from a donor, the position will depend on whether this happened in an HFEA licensed clinic, at an unlicensed clinic or informally.
If you gave birth to the child, you will be regarded as the legal mother and have parental responsibility, regardless that you have used a sperm donor.
Sperm donation in an HFEA licensed clinic
Sperm donation via unlicensed clinic or at home
In an at home arrangement, if a child is conceived with sperm donated via sexual intercourse rather than artificial insemination, then the sperm donor will be considered the second legal parent regardless of if the mother is married or in a civil partnership.
In an unlicensed clinic or at home arrangement, it is important to note that the sperm donor could be liable for child maintenance or future inheritance claims even if they do not register the birth.
If you are not married or in a civil partnership, and did not sign an agreement at an HFEA clinic, you may be able to obtain parental responsibility for the child in the following ways:
Speak to our family solicitors if the first three options are not available to you.
It is extremely important that all parties involved in an assisted conception understand what their role will be, if any, in raising the child.
It is best to obtain early specialist advice in order that the appropriate arrangements and agreements can be put in place if necessary.
For further information, please contact Hannah Byatt in the Family Team on 01480 702207 or email [email protected].
Partner - Team Leader Family
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