Negotiating the role of sperm donors: the benefits of planning ahead

Re G (A Minor); Re Z (A Minor) 2013 (1) is a landmark High Court ruling in which, in the first known decision of its kind, two male sperm donors, known to the mothers, were granted permission to apply for contact with the children. The latest in a series of high profile disputes involving known donors, what implications does it have for same sex parents and those who have started families using donor conception?

The case involved a male couple who each had a child with two separate lesbian couples in civil partnerships. While the donors initially saw the children on a regular basis, the relationship between the couples broke down, and all contact was ceased.

Ordinarily, a biological father would by right be able to apply to the court for a contact order. However, following the Human Fertilisation and Embryology (HFE) Act 2008, where a woman is in a civil partnership and conceives using a known donor, legal parenthood is vested only in the mother and her civil partner. This meant that the two donors were required to obtain permission from the Court before they could formally apply for contact.

While the mothers had argued that the intention of the HFE Act 2008 must have been to exclude donors from having any role whatsoever, Mr Justice Baker said that if this had been the intention of Parliament, it would have specifically excluded them from being able to even ask the court for permission in such circumstances, and there was no such bar.

However, he stressed that each case was fact-specific. Had there not been an established relationship and ongoing contact, it is possible that permission would not be granted. He also warned that even if any contact was subsequently ordered by the court, it was likely to be significantly less than the fathers were seeking.

While this makes sense from a legal perspective, it will understandably concern those couples that have entered, or are planning to enter, into such an arrangement. Often the attraction of using a known donor is so that their child can have knowledge of, and potentially a relationship with, their biological father, as many feel it is important for their child to grow up with that connection.

However, if by doing so they are establishing a greater possibility that the donor may have a more extensive role in their child's life than they would have wanted, less may wish to take that risk. As a result, more may turn to anonymous sperm donation and, by doing so, remove that connection between the child and the biological parent (at least until the child grows up).

So how can those who want to maintain a connection do so while avoiding the risk that the donor may acquire a greater role in the child's life than either had originally intended? One option is to enter into a written agreement (often referred to as 'known donor' or 'pre-conception' agreements) with the known donor before the conception takes place.

While these will not be legally binding, given it is not possible to remove the ability of the Court to make an order it believes to be in the child's best interests, it will encourage parents to think in greater depth about the extent and nature of the roles that each intend to have.

What has been apparent in recent reported disputes involving known donors is the general lack of detailed consideration given to how these relationships will work once the child is born. Some have taken this as evidence that these arrangements are inherently unstable, but what seems more likely is that it is there has been insufficient thought as to how the roles would work in practice.

It is fundamental when entering into an arrangement with a known donor for all involved to think about exactly what they anticipate the role or involvement (if any) of the donor to be. Ensuring that everyone is clear as to what is intended and agreed will go some way to help avoid a dispute in the future.

It is also vital to realise that feelings and relationships may change post-birth. A particularly striking comment in the judgment was a quote from one of the biological fathers who, in support of his application, had said: 'I will accept that the reality of becoming a parent to two new human beings was more wonderful than I had expected and that I felt a stronger tie than perhaps I imagined'.

Despite the concerns this decision may raise, it is a timely reminder of the importance of carefully considering, agreeing and setting out what arrangements are to be put in place and the level of involvement a known donor is to have before beginning the process.