Both of these stories make it seem timely to sort out the fiction from the fact as far as the legal implications for both sperm donors and prospective parents. Difficult decisions about sperm donation is something many parents face for a multitude of reasons ranging from infertility, to same sex couples wishing to have children.
My advice to potential donors and parents is to make sure you do your research first. The Human Fertilisation Embryology Authority (HFEA) is the UK’s independent regulator of sperm donation and they are a great reference source for all parties.
The main point for a potential sperm donor to realise is that by going to an HFEA licensed clinic and donating to people he doesn’t know, he won’t be the legal father of any child conceived as a result of his donation, and he won’t be open to any financial or inheritance claim related to the child down the road.
So far, so good, but as a new HFEA report highlights, the number of new registered sperm donors in the UK has actually dropped substantially in the last year from 631 down to 586.
Reading the report, it’s also very noticeable that there is an influx of imported sperm mainly from the USA and Denmark and a large portion of donors identify themselves as ‘British-white’, or ‘other-white’.
This creates understandable challenges for prospective parents from other ethnicities searching for an appropriate donor for a longed for child.
The upshot of this shortfall in domestic donors is that some people go looking elsewhere for donors, perhaps by looking on the internet and going to a non- HFEA licensed source. I would counsel donors and parents that if they chose to do this, for whatever reason, they need to be aware of the risks.
The main legal implication is that the donor may not have the same legal protection as he would by going to a regulated clinic and could be open to a claim of ‘legal fatherhood’ with all the associated financial and inheritance responsibilities.
From a parent’s perspective, it’s also worth bearing in mind that they should ask questions about what health screening of donors is carried out regarding genetic conditions before they make a decision to accept a potential donation.
Another emotive subject is the possibility that a child may want to find out more about their genetic father later in life. Presently, there are channels open through the HFEA to track down certain information.
This might be via parental application if the child is under 16, or the child can apply themselves if they are over 16. The type of information available will depend on when the child was conceived, since HFEA only have records for conceptions after August 1991.
Information that might be available could include the donor’s general description, date and place of birth and also if the child has any donor-siblings.
But a change in the law in 2005 means that once a child is 18, they have the right to contact the donor if HFEA has up-to-date contact details.
It’s their legal right, but I think it is worth considering the fallout.
Consider the potential impact on the child’s relationship with the parents who have brought him or her up, or the impact on the parent’s own relationship if they feel that their child is no longer happy with them.
On top of that, imagine that the sperm donor may have a family of his own, who don’t know he donated sperm when younger, and what might happen if there is a knock on the door 18 years after the event. Whatever you think about the legal as opposed to the emotional or moral implications of the child’s ‘right to know’, the law is there and can be used, but again, only if information is available via a registered clinic.
If a child wants more information and sperm donation happened at a non-registered source, the trail could be impossible to follow.
That has its own emotional fallout.
The bottom line is that sperm donation seems like a very altruistic action, and it can help people who are desperate to conceive and can’t do it by conventional means. But there are a host of considerations. As a solicitor, I obviously look closely at the legal ramifications, but the emotional implications for parties are also huge.
If you are a potential sperm donor or a prospective parent, do your homework first and check out the HFEA website http://www.hfea.gov.uk. A bit of forethought now could save you and any potential children a lot of heartache in the future.
• Marilyn Stowe is the senior partner at Stowe Family Law, the UK’s largest standalone family law firm. Follow her on Twitter @marilynstowe