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Wednesday, November 26, 2014

Known donation and co-parenting: seek legal advice early

Richard Perrins is part of the team of specialists at fertility and family law firm Natalie Gamble Associates. He explores issues around known donation and co-parenting arrangements with regards to UK law

For same-sex couples who are looking to start a family there are a variety of options available in order to do this.

For lesbian couples a common preference is to conceive a child through a licensed UK fertility clinic with the assistance of the sperm from an anonymous donor.

For many couples this option has its appeal due to the relative security in knowing that the donor will have no legal status and will be unknown to the child (at least until the age of 18 when child can find out the identity of their donor if they choose). Such donations will also have undergone medical screening.

This, of course, is not an option for would-be gay dads whose most realistic option is surrogacy: if they want children to whom they are biologically related. Surrogacy is an increasingly used route to parenthood and the results are overwhelming positive. However, the options for surrogacy in the UK for gay men can be limiting and overseas surrogacy can be cost prohibitive for many.

For many, a commonly used route to becoming parents is through known donation and subsequent co-parenting. It is not uncommon for a lesbian couple to conceive artificially at home with the assistance of a known donor who may be a long-standing friend, or, in some cases, someone they met over the internet.

There are many reasons why people choose to conceive children in this way. Many women prefer for their child to know their father in some capacity as they grow up. From the donor’s perspective they may wish to simply help out old friends or, in many cases, actually have an involvement – whether as a parent or in a more limited role.

However, the extent of this role can become extremely contentious in practice and lead to difficult issues. Co-parenting is not always a three-way relationship but often involves a set of two couples that decide to start a family together: typically both couples being of the same sex.

For the main part these arrangements work very well and are increasingly common. However, as with all walks of life problems can arise within such families, leading to relationship breakdown. There are a number of complex legal as well as practical issues that can arise.

There has been some high profile reported cases involving known donors over the years with the most recent being the reported case of Re A and B (Children) [2013] EWHC 2305 (fam). The case involves a dispute between a lesbian couple and a known donor father (and his male partner) and the level of contact that should take place between the fathers and the children.

This case is notable in that it has been on-going for six years and involves such a high level of acrimony between the parties involved that the court was almost at a loss as to how to progress without causing harm to the children involved.

The mothers in the case are so resistant to contact that the fathers applied to the court (amongst other things) to have the mothers committed to prison for breaching court orders and not making the children available to contact.

Although the original circumstances of conception are only part of the backdrop of this very sad situation – and not the key feature – the case remains proof of how badly things can go wrong.

Another important case involving known donors was Re G, Re Z (Children: Sperm Donors: Leave to Apply for Children Act Orders) [2013]. This was actually two separate but connected cases, with one being the first of its type: a biological father made an application to court when he did not have the automatic legal right to do so.

The mothers in the case were in a civil partnership at the time the child in question was conceived meaning the father, automatically, did not have any legal status (as was intended originally). However, the role of the donor was a hotly contested issue and he sought to have more involvement in the child’s upbringing.

In a landmark decision, the Judge allowed the father permission to apply for an order, meaning that he would at least have his opportunity to have the case heard, although this did not necessarily mean he would have contact with the child.

There are a range of issues that can crop up with known donation and co-parenting agreements, and getting specialist advice at an early stage can be incredibly valuable.

As well as the underlying legal position in terms of parenthood and financial responsibility, it is important to address all practical issues from an early stage.

In the cases where the relationship breaks down it is a common feature that the level of understanding and expectation between the parties is often wildly different. If, at an early stage, the respective roles of all the parties and level of involvement the donor is to have is decided, this can be hugely beneficial.

If at such an early stage of discussions there is a significant difference then it is far better to allow things to fall apart before proceeding to conception or beyond.

If possible, a co-parenting agreement or pre conception agreement can be entered: ideally identifying all the relevant factors. Whilst this holds no legal weight as such, it could be a very useful tool in either preventing or managing future disputes.

Family disputes are never welcome and there are many alternatives before getting the courts involved. This includes negotiation through solicitors, family mediation and arbitration. There is a wealth of further information at the official website of Natalie Gamble Associates.


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