Known donor and co-parenting disputes
While many known donation and co-parenting arrangements work very successfully, the fact that there is an ongoing relationship to manage between the adults as well as with the child means that difficulties sometimes arise. These usually concern the role and involvement the adults have, or child support issues.
What is the legal position?
It is important to know who the legal parents are and who has parental responsibility, in your particular circumstances. This dictates financial responsibility as well as the applications you can make to the court. The legal position is complicated and depends on the particular facts:
A known egg donor is not a legal parent and does not have parental responsibility (find out more about an egg donor's legal rights and responsibilities).
The position of a known sperm donor or co-parent is more complicated. He might be the legal father (with parental responsibility if he is named on the birth certificate) or he might have no legal status as a parent, depending on the circumstances of conception. Find out more about whether the biological father is the legal father.
Disputes over the father’s role
Disputes can arise concerning the role the biological father plays: How much contact does he have? Is he regarded as a parent or as a donor? What role does his partner (and the birth mother's partner) play? It may be that you never fully agreed the answers to these questions before conception and now realise you expected different things. It may be that things were agreed at the outset, but someone has changed their mind, or circumstances have changed.
Ultimately if tensions arise about how care arrangements work and you cannot agree (between yourselves or with the support of solicitors or mediation) you can apply to the family court to make a decision. The applications you can make to the court depend on your position:
If you are the biological father (or his partner) you can apply for contact or a specific issue/prohibited steps order, or possibly for residence (although you will need the court’s permission to apply if you are not the legal father). You can only apply for parental responsibility if you are the legal father.
If you are the birth mother (and her partner) you may be defending an application from the donor. You may wish to apply for a residence order securing your position or, if you are a couple and the donor is the legal father, for adoption to extinguish his position.
What will the court take into account?
If any court application is made, the court will make a decision based on its assessment of your child’s best interests. The court will take into account what you agreed at the outset, any written donor or co-parenting agreement, how things have worked in practice and what each of you can offer your child.
This remains a new and emerging area of law, and the higher courts have been beginning to articulate principles for the lower courts to follow through a handful of recent cases (although the Court of Appeal has also recently said that it is very difficult to set general principles for these kinds of cases, and that every case will be looked at individually). Read the case law.
Known donor and co-parenting disputes require a very different approach to standard mother-father custody disputes with sensitivity to the unique circumstances. How your case is presented, which forum you choose, and ensuring that the specialist case law is appropriately considered from the very outset, can be critical.
Disputes over child support
The other main disputes that arises in known donation situations concern child maintenance. Child maintenance claims can generally only be made against known donors where the donor is or might be the legal father (find out more).
A donor who is or might be the legal father can be pursued:
For regular child support payments through the Child Support Agency - CSA support is normally assessed at 15% of net earnings (20% for two children or 25% for three or more) and claims can only be defended if you are able to establish that the biological father is not a legal parent, or
For top up maintenance and capital and other awards under Schedule 1 of the Children Act 1989 – these claims can be defended on the basis that the donor is not the legal father, or on wider discretionary grounds.
Find out more about financial responsibility for a child and how the law works.
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 law on donation and parentage.
How we can help
We have the UK’s leading expertise on issues of legal parenthood and the law for alternative families, and have many years of experience handling known donation disputes, including:
- representing lesbian and solo mothers in dispute with their donor,
- representing co-parent fathers seeking greater involvement, and
- representing sperm donors defending their financial position.
The legal position is often complex and having experienced specialist representation can be absolutely key. Find out more about our services.
More information and NGA in the news
Listen to Natalie talking to Jenni Murray about known donor disputes on BBC Radio 4 Woman's Hour
Sperm donors who known parents can apply for contact, court rules - The Guardian, 1 February 2013
Gay sperm donor told to pay maintenance for 'his' two children - The Guardian, October 2012
Known donation on trial - Bionews article by Natalie Gamble, February 2012
How to avoid a known donor dispute - from our blog
Fathers or donors? The legal position of friends who act as informal sperm donors - Bionews article by Natalie Gamble, December 2008
Sperm donor pays maintenance to lesbians - The Telegraph, December 2007