Known donor disputes

child in windowDisputes about the donor or co-parent's role

Disputes sometimes arise in known donation and co-parenting arrangements about the nature of the donor or co-parent's role.  This might involve questions about the frequency, purpose or nature of contact, or about whether a donor/co-parent should have parental responsibility.  Such disputes have historically involved known sperm donors/co-parent fathers seeking a greater role, but similar issues could also apply in respect of known egg donors.

As with other disputes about arrangements for children, mediation should be considered as a first step.  If matters cannot be resolved by agreement, the type of court application which can be made will depend on the circumstances:

  • A biological father (and/or his partner) might wish to apply for a child arrangements order and/or a parental responsibility order. Depending on the circumstances of conception, he might need the court's leave to apply.
  • A birth mother (and/or her partner) resisting an application from a known donor might cross-apply for a child arrangements order or might wish to apply for adoption in order to extinguish the donor's legal fatherhood.

Known donor and co-parenting disputes require a very different approach to standard disputes between separating parents, and the presentation of the case, where the application is made and ensuring that the specialist case law is appropriately considered from the outset, can be critical.

The court's paramount consideration is the child's best interests. The court might take into account any written donor or co-parenting agreement, but will weigh this against the history of what has happened, the connections each adult has with the child, and what best promotes the child's welfare going forward. This remains a new and emerging area of law, in which the court is still exploring its thinking.

Cases outside the HFE Act 2008 (where the donor was the legal father):
In Re D (lesbian mothers and known father) 2006, a known donor to a lesbian couple was given parental responsibility, but on a restricted (and ultimately agreed) basis. It was felt that his status should be acknowledged, but that the nuclear family unit (of the two lesbian mothers) should be protected from interference. Haema from our team acted in this very first UK lesbian parenting case and was named Times Lawyer of the Week.

In Re B (role of biological father) 2007, the biological father was the non-birth mother's brother, and he applied to court seeking a more significant role.  He was denied parental responsibility but given 'identity contact' with the child four times per year.

In Re P and L (2011), there was a long and protracted dispute between co-parents, the gay fathers wanting a greater role than the lesbian mothers accepted. The fathers were ultimately acknowledged to be 'secondary parents' and given regular contact. The court also said that any agreement between the parties (although nothing was put in writing in this case) should be given weight.

In the Court of Appeal Case of A v B and C (2012), the court allowed a biological father to see his son regularly, even though he had agreed with the child's lesbian mothers at the outset that he would have no involvement (again there was no written agreement). The court rejected the concept of primary and secondary parents, saying that this risked demeaning the important role a known father could offer, and said that the only principle was that child welfare was paramount.

Cases under the HFE Act 2008 framework (where the donor is not the legal father):
Re G and Re Z (2013) involved two lesbian parent couples who were each civil partners and so joint legal parents named on their children's birth certificates. An application was made by their known sperm donors (whose legal status as parents was excluded by the law) for regular father-style contact. The court gave the donors leave to make an application (because the contact they had already been given in the early months of the children's lives gave them sufficient 'connection') but said that it did not follow that rights of contact would inevitably be given, and an expectation of alternate weekend contact was 'wholly unrealistic'. We represented the mothers in this landmark case.

Financial disputes

Disputes also sometimes arise over whether a known donor is financially responsible for a child.  Whether a known donor is financially responsible depends solely on whether he is the child's legal father.  It is often a surprise for a donor to learn that no account will be taken of any agreement (written or verbal) that he should be treated as a donor.  It is also irrelevant whether the donor has had involvement with the child.

If he is a legal parent, an application can be made:

  • to the Child Maintenance Service for regular child support
  • to the family court for an order under Schedule 1 of the Children Act 1989 (which might include top-up maintenance or a capital or property award).

ipad and coffee cupThere have been a number of high-profile cases involving sperm donors pursued for child support. Financial claims against donors can involve complex legal proceedings, which require not only a clear understanding of child maintenance law, but also a detailed understanding of the law on donation and parentage.

In 2007, fireman Andy Bathie was pursued for child support by the Child Support Agency, in respect of two children he had helped a lesbian couple to conceive.  The parents had separated, and the birth mother (unable to pursue her former partner for child support) made an application against the children's biological father.

Similarly in 2012, Mark Langridge was pursued by the Child Support Agency for maintenance payments for two children, twelve years after donating his sperm in a private arrangement to a lesbian mother.

In 2013, in the case of M v F and H a married woman had met a sperm donor via an Internet matching site and conceived a child. She pursued the donor for child support, and there was a dispute over whether conception took place by artificial insemination or 'natural insemination'. After a fact-finding hearing, the court found that conception had taken place through intercourse and held the donor liable for child support and substantial legal costs.

Find out more about financial provision for children.