Family expansion through Third Party Donors - The Critical need for Clarity

Author  -  Daniel Theron

All LGBT couples and individuals considering creating or expanding their families with the assistance of a third party should consider instructing a lawyer to draft an agreement setting out the arrangement the parties are entering.  The High Court case before Mrs. Justice Theis recently involving a lesbian couple and a sperm donor has shown extremely clearly that it is imperative that all parties are comprehensively aware of all aspects of the arrangement they are entering and have complete understanding of the expectations placed upon them.

Daniel Theron, a partner, commented "individuals who decide against a formal legal agreement may be creating unnecessary problems, not to mention costs, for the future if they simply rely upon the assumption that all parties agree and understand the nature of the arrangement." 

The High Court battle involved a lesbian couple in a civil partnership who sought a sperm donor on the internet and identified a suitable donor.  A child was conceived by artificial insemination using the person’s sperm.  It transpired that the couple and the doner had very different views on the nature of the arrangement they had all entered.  The couple believed that they had used a service that the man was prepared to provide, whereas the donor believed he had entered a co-parenting arrangement.  During the immediate aftermath of the child’s birth the couple tolerated the donor’s limited amount of contact with their daughter.  After a little while the couple withdrew consent to such contact as they began to have reservations regarding the man’s concentration on his own rights, perceived lack of insight and his focus on the adult conflict. They did not think that there was likely to be a change in attitude nor was there any real concern for the reality of child’s position.  The couple believed that the child should be truthfully informed about her background and one parent demonstrated to the court the steps she had taken following professional advice she had sought to enlighten her daughter in a way that was appropriate for a child of her age.  Also the couple felt that the circumstances of the child’s conception should be provided to their daughter in various stages commensurate with her age and capacity to grasp the principle of her conception.

The donor sought a child arrangements order from the court to allow him to be able to spend time with the child.  However, Mrs. Justice Theis was not convinced that this was the best course of action for the child stating  “whilst I accept the importance and the need for [the girl] to have information about her background and identity, including her genetic identity, that is not a right that exists irrespective of her welfare.”  The Judge commented that she further believed that if the man spent more time with his daughter he would seek to expand the time he spent with her and there was a possibility that this would put her current stability at risk. 

As the child’s parents have now split up and she lives with just one of her parents.  The Judge felt if at some time in the future the child expressed a wish to have direct contact with her father that this would be facilitated by the parent she lives with.  In the meantime, the donor was granted the right to send letters and photographs.

Creating a family in conjunction with a third party is a sensitive issue The law on the rights of sperm and egg donors is clear and set out on the government website .  It is extremely unwise to assume that all parties involved share the same perceptions and are in agreement.  Even if there are discussions among the parties involved and the expectations are clearly set out an assumed to be agreed that does not eliminate the possibility of one or more of the parties involved from changing their mind and failing to adhere to the arrangement agreed upon.  If a legal agreement is drawn up and signed by all parties if at a later stage there is a court battle the document will be a persuasive indication of the attitude and understanding of all those involved at the time of the arrangement.

For more information about donor agreements and surrogacy please click here