Donor Insemination and IVF Treatment

If you're thinking about conceiving through Artificial Insemination (AI) it's really important to know the legal implications and to have information about how and where to access treatment. 

Whether you're single, in a partnership or entering a co-parenting agreement you'll need the facts. To help Stonewall has produced detailed parenting guides which you can order for free by emailing info@stonewall.org.uk or download copies through the links below;

Pregnant Pause - a guide for lesbians on how to get pregnant 
A Guide for Gay Dads

Your Legal Rights

By Natalie Gamble, fertility law specialist with Natalie Gamble Associates 

The law changed on this matter after the implementation of the Human Fertilisation and Embryology Act 2008.

The law was changed on 6 April 2009, and the new rules on parenthood for lesbian couples apply only to children conceived on or after that date.  They allow both lesbian partners to be treated as parents of a child they conceive together in certain circumstances.

Lesbian couples who are civil partners

Lesbian couples who are civil partners at the time of conception and conceive a child through artificial insemination will both automatically be treated as their child’s legal parents. 

This applies both where civil partners conceive through fertility treatment at a licensed clinic and where civil partners conceive through artificial insemination by private arrangement at home (for example using sperm donated by a friend acting as a known donor).

For civil partners to be recognised as joint parents:

• The couple must be civil partners at the time of conception.  If they register as civil partners during the pregnancy or after the birth, they will not qualify. 

• The conception must be through donor insemination or fertility treatment rather than through sexual intercourse.  This includes donor insemination at home. 

• The non-birth mother must consent to the conception, although it is presumed that she does consent unless demonstrated otherwise.

The non-birth mother, where treated as a legal parent, can be named on the birth certificate and will automatically have full parental status and parental responsibility, like a married father.

Where a child has a mother and a second female parent, he or she does not have a legal father.

Lesbian couples who are not civil partners

Couples who are not civil partners at the time of conception but who conceive together through a fertility clinic in the UK licensed by the Human Fertilisation and Embryology Authority may also both be treated as legal parents.  The non-birth mother will be treated as the child’s other legal parent if both partners sign consent forms electing for the non-birth mother to be treated as a parent. 

For non-civil partners to be recognised as joint parents:

• Both partners must sign the election forms (which will be provided by the clinic) before the date of conception.  The forms will not be effective if signed after conception, which means that the couple must be conceiving the child together from the outset.

• The couple must conceive at a licensed clinic in the UK.  Non-civil partners who conceive outside a UK licensed clinic (for example at a clinic abroad, by private arrangement at home, or through sexual intercourse) will not qualify.

The non-birth mother, where treated as a legal parent, can be named on the birth certificate if her partner consents.  If she is named on the birth certificate, she will have parental responsibility (the authority to make decisions about her child’s care).  If she is not named on the birth certificate, she will be financially responsible for the child and will be treated as a parent for the purposes of inheritance, but she will not have the authority to be involved in parental decision-making unless she acquires parental responsibility by other means (including by a court agreement or a court order).

When non-civil partners conceive outside a UK licensed clinic (for example by private arrangement at home) the non-birth mother will have no legal parenthood and will have to adopt the child to obtain parental rights.

Where a child has a mother and a second female parent, he or she does not have a legal father.

Impact on birth registrations

Since the new rules only apply to children conceived on or after 6 April 2009, the government has decided that the earliest a birth could possibly be registered by a female same-sex couple in the UK would be 1 September 2009.

Where a lesbian couple registers a child’s birth after this date, both partners can be named on the birth certificate if they qualify as joint parents under the rules explained above.  If the couple are not civil partners, the non-birth mother must be present at the birth registration together with the birth mother to be named on the birth certificate.

The birth certificate will record the birth mother as the ‘mother’ and her partner as a ‘parent’.  No father’s details will (or can) be recorded if two women are named on the birth certificate.

Impact on sperm donors

Donors who donate their sperm through a licensed clinic are not normally treated as being legal parents of the children they help conceive.  This means that clinic donors cannot be held financially responsible for maintaining their genetic children, and nor will their donor-conceived children have any rights of inheritance from them. 

A donor who donates sperm outside the context of a licensed fertility clinic (for example, a friend or a donor found through a website online) does not acquire this automatic protection and may be treated as the legal father of the child.  However, where a child has a mother and a second female parent he or she does not also have a father.  This means that, where a donor donates informally in circumstances where both lesbian partners will be treated as legal parents (including civil partners conceiving at home), the donor will no longer have any legal or financial responsibility for any resulting child.

Children conceived before 6 April 2009

The new rules only apply to children conceived on or after 6 April 2009.  A different set of rules applies in respect of children conceived by lesbian couples before this date and these rules will continue to apply into the future for older children.

The partner who gives birth will be treated as the child’s mother. 

Her partner will not have any automatic status as a parent, even if the couple are civil partners.  If no legal action is taken, this means that she may have no financial responsibility for the child and will not be able to apply for certain court orders to regulate her involvement in her child’s life without the leave of the court.

A non-birth mother may acquire certain indirect rights and responsibilities automatically if the couple are civil partners.  For example, if a civil partnership breaks down, the child will be treated as a ‘child of the family’ allowing the court to make appropriate arrangements for the child’s care which recognises the non-birth mother’s position.

The non-birth mother can also take steps to acquire direct parental status and there are a number of options including:

• A residence order – this is an order made by the court settling who a child should live with.  Where made in favour of a couple, it has the effect of conferring parental responsibility (and so the authority to make decisions about a child’s care) on the non-birth mother.  However, the non-birth mother will not have full legal status as a parent for the purposes of things like inheritance, and this makes it important for the couple to make appropriate Wills.

• A parental responsibility agreement – this is an alternative means of acquiring parental responsibility for a non-birth mother and is available to couples who are civil partners.  The process is more straightforward than applying for a residence order since it does not involve a court application.

• Adoption – this gives the non-birth mother full status as a parent as well as parental responsibility, including financial responsibility and inheritance rights.  The process is lengthy and the court application cannot be made until the non-birth mother has lived with the child (post-birth) for at least six months.  The couple do not have to be civil partners to apply.  An adoption order will have the effect of extinguishing the legal status of the child’s father (if any) as well as conferring parenthood on the non-birth mother.

This means that lesbian couples who have conceived children together before 6 April 2009 may be in very different legal circumstances, according to the steps they have taken (if any) to acquire status for the non-birth mother, and according to whether or not they are civil partners.  Legal advice on the particular circumstances is recommended.

The child may or may not also have a legal father.  If the couple have conceived through a licensed fertility clinic using a registered sperm donor, their child will have no legal father.  If the couple have conceived at home using a friend or known donor before 6 April 2009, he will be their child’s legal father until an adoption process (which extinguishes his status) is complete.

 


 


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