'Joe Donor' in Scotland? Possible Scots law approaches to sperm donors and legal parentage

Back in 2020, we blogged about the issue of declarators of parentage, highlighting that Scotland lacked the statutory provisions, which existed in England, allowing a court to decline to make a declarator of parentage or non-parentage even when the facts and law were clear as to the genetic parentage. Our conclusion was that we, in Scotland, were overdue a conversation about these issues.

The issue has raised its head again recently in another high-profile English case, Re N (Paternity: Unregulated Sperm Donor), when the High Court refused a declarator of parentage on the grounds of public policy, in respect of a man who had provided sperm in an unregulated donor arrangement (see BioNews 1336). The man in question, Joe Donor, was a prolific sperm donor; his activities – and the unregulated sperm donation market as a whole – were the subject of a recent high-profile BBC documentary, Swipe Right for Sperm.

However, while English solicitors (and recipients of donor sperm) have this High Court decision for guidance, we ask: what the outcome would be in Scotland?

Scots Law

In Scotland, the question of who is a child's legal father or second parent depends on whether the child was conceived naturally – through sexual intercourse – or by way of sperm or egg donation. The child's mother is always, in the first instance, the woman who carries the pregnancy and gives birth.

In cases of natural conception, the common law provides that the father is the genetic father. Where there was sperm donation, UK-wide legislation – the Human Fertilisation and Embryology Act 2008 – applies, producing the same result in Scotland as in England and Wales.

The 2008 Act distinguishes between cases where the mother is married or in a civil partnership, and where she is not. The spouse or civil partner of the mother will be a legal parent, regardless of whether the sperm donation and insemination took place in a clinic or informally, at home. However, when the mother is not married or in a civil partnership, second parenthood can only be conferred on an unmarried partner when the treatment is carried out in a licensed clinic.

Accordingly, where (as in this case) an unmarried mother conceives through informal artificial insemination, we fall back on the common law position that the child's father will be the genetic father.

In Scotland, an informal sperm donor in the position of 'Joe Donor' could raise an action for a declarator of parentage under section 7 of the Law Reform (Parent and Child) (Scotland) Act 1986. Critically, unlike the English provisions in sections 55A(5) and 58(1) of the Family Law Act 1986, there is no provision for a Scottish court to consider the best interests of the child or wider public policy considerations. All that seems to be required is for the party to establish that they are (or are not) the natural parent of the child.

This was the approach taken in the 2014 decision CS v JS and KS, where an action for declarator of non-parentage was raised by the husband in respect of the parties' son, who was approximately 15 years old. The husband was able to show that, on the balance of probabilities, he was not the genetic father of their son, and that the son had been conceived as a result of another relationship. The Sheriff granted the declarator without considering the best interests of the child or any public policy issues – and indeed there was no legal basis for him to do so, despite the potential harm caused to the child in setting aside a 15-year parent/child relationship.

In the absence of any test of the best interests of the child or wider public policy considerations, would a Scottish court therefore have to make a declarator of parentage in the 'Joe Donor' scenario, despite the very serious concerns about his conduct, as expressed by the President and by two other English judges? Or is there another approach that could be taken?

The United Nations Convention on the Rights of the Child (UNCRC)

One possible route would be to rely on the provisions of Article 3 UNCRC, which requires the best interests of the child to be a primary consideration in all cases. Article 12, obliging parties to have regard to the views of the child, could also be relevant.

As a result of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024, Scottish courts must now ensure legislation is applied in a way which is compliant with the UNCRC – but this only applies to Acts of the Scottish Parliament, under section 6(2)(b)(i) of the 2024 Act.

Since the 1986 Act is not an Act of the Scottish Parliament, it does not need to be applied in compliance with the UNCRC. However, the 2024 Act also requires all common law provisions to be UNCRC compliant: section 6(2)(b)(iv) specifically refers to 'a rule of law not created by an enactment'.

So, whereas the declarator provision is set out in the 1986 Act, the actual definition of a father still relies on the common law position, being the genetic or 'natural' father. Could this provide a route into relying on wider considerations of best interests and views under the UNCRC, which could be expected to make a considerable difference to the outcome of the case, instead of relying solely on the factual matrix of whether that person's sperm conceived that child? And would the courts distinguish between conception which takes place through sexual intercourse, and that which takes place through unregulated insemination?

Whatever assistance the UNCRC might provide in relation to welfare issues, it would not provide an avenue to refuse an application on public policy grounds. It seems at best unfortunate that, where an English court has decided to refuse an application on the grounds that it is manifestly contrary to public policy as established in the Human Fertilisation and Embryology Act of 1990 and 2008, a Scottish court may have to grant an identical application, notwithstanding that the same legislation is intended to regulate the practice of gamete donation in Scotland.

An adverse incentive?

Ironically, however, the English approach arguably provides an incentive to seek a prolific and immoral donor: an intended mother who wishes a private donor with no ongoing role in the child's life may get the result she wants by using a donor such as Joe Donor, where the court has a strong public policy incentive not to recognise him as the legal father. This, in itself, is potentially contrary to public policy, and something of a catch-22 – albeit one that does not arise in Scotland.

While the current legal position in Scotland appears to be a matter purely of fact, with no scope for judicial discretion, that is not the case when it comes to determining who has parental responsibilities and rights in respect of a child. In that case, one would expect the court to reach a decision very much based on the best interests of the child, and their views, and not simply the factual position as to conception.

We await Scottish case law with interest. In the meantime, it might be sensible for policymakers to give some thought to these issues before a court is required to apply the law as it stands to a donor-conceived child.