A high court judge has ordered that known sperm donors can apply for leave for contact in respect of their children despite not having any legal relationship with them.

In re G (A Minor); Re Z ( A Minor )2013 EWHC 134 (Fam) the proceedings involved separate but linked applications by two men for leave (permission) to apply for a residence and contact orders in relation to the children born as a result of their sperm donations.

Outline

Two lesbian couples were friends with a gay male couple. One of the male couple was the biological father of both children of one of the lesbian couples. The other man was the father of one child who was being parented by the other couple.

As a result of the reforms introduced in the Human Fertilisation and Embryology Act 2008 (HFEA 2008) the legal parenthood of the children was vested in the mothers and their respective civil partners. As non parents the donors had to first apply for leave (permission) to make an application for contact and residence under the Children Act 1989.

The court said when considering whether a known donor could apply for residence, contact and parental responsibility for a child, the court must take into consideration factors including the following; the nature of the application, the applicant’s connection to the child and the potential for disruption to the child’s life. However the court will be cautious to protect the de novo family and their rights to a family life under Article 8.

The facts

The male couple S and T had been in a relationship for 20 years. In 2001 S became friends with D. In 2003 D met another woman E and started a relationship with her. D and E started to live together in 2006 and at this point S and T and D and E lived within 100 yards of each other in London. D and E decided that they wished to have a child, and agreed to ask someone they knew to provide the sperm. They asked S and he, having discussed the matter with T, agreed. It was agreed that E would be biological and birth mother of the child. D and E claimed that they made it clear to S that the arrangement was based on 3 terms which they summarised as:-

  1. No parental title
  2. No parental responsibility
  3. No financial committment

They said it was agreed S would have no role in bringing up the children and that they would continue to socialise as adults. They denied there had been a relationship between S and the children other than that being a friend of the parents. This was not accepted by S who said that it was agreed between the parties that D and E would be the primary parents, he would be involved in the child’s upbringing, and he and T would have contact with the child. The first child F was born in December 2008. Thereafter there was regular contact between S and T and F which S and T said took place once a week. D and E disagreed and said the contact was less frequent and that it was not organised contact but more about socialising as friends.

Around the same time discussions started between T and two female friends of D and E known as Y and X who were in a same sex relationship and who wanted to start a family. Following their discussions T provided sperm for X and Y and in due course X became pregnant in August 2008. Shortly afterwards discussions took place about having a sibling for F. S agreed. In his statement for the Court he said “he thought it might help us to draw even closer to the mothers and we were pleased that they were pleased enough with S to ask me to father another child. It seems an acknowledgement that all was going well and they were happy with our fatherly behaviour towards F”.

In April 2010 X gave birth to her son Z. On 1 September 2010 E gave birth to her second child, a boy G.

Unfortunately things did not go well from either party’s point of view. Contact issues arose in both cases. S applied for contact in August 2011. Unfortunately in January 2012 he was diagnosed with a brain tumour and admitted to hospital. He decided to drop their application for contact to F and G. However later both donors applied for permission to apply for contact and residence. The purpose of this blog is not to go into the dispute in any great detail but to focus on the outcome.

Judgment

A thoughtful judgment was given by Mr Justice Baker on 31 January 2013. The Judge explained that anyone seeking a section 8 Order against the wishes of the parents must obtain the permission of the Court which will consider all relevant factors including the factors set out in section 10 (9) Children Act 1989. As part of that analysis the Court will consider the rights of legal parents to family life including the right to make decisions about their children. Those rights are widely recognised both as a longstanding principle of English law and under article 8. In this regard the position of a lesbian couple who have been granted the status of legal parents by the 2008 Act is exactly the same as any other legal parent. Having taken those rights into account, however it is still open to the Court, after considering all relevant factors, to grant leave to other persons to apply for section 8 Orders.

As a result of choices made by the mothers, both S and T had regular and frequent contact with G and Z. D and E chose S and an old friend of D’s who lived just 100 yards away to provide sperm to enable them to conceive a child. They involved him in the preparations before the birth. They invited them to see the new baby immediately after the birth and thereafter on a regular basis. Equally X and Y having met T through D and E and being fully aware of the degree of involvement S had in F’s life selected T to provide sperm to enable them to conceive a child and subsequently allowed T frequent and regular contact on over 50 occasions in the first 18 months of Z’s life. By choosing friends to provide sperm to enable them to conceive children the mother’s were exercising their parental responsibility to facilitate some sort of relationship between the children and their biological father. Therefore the judge rejected the mother’s submissions that granting leave to the Applicant would have the effect of frustrating the legislative intention behind the 2008 reforms.

The judge considered that the most important factor is the connection that each Applicant was allowed by the Respondents to form with the children. The Judge therefore granted the applications for leave to apply for contact orders but not for residence orders.

Warning

The judge uttered some words of warning namely that the granting of leave did not mean that any contact order will be made in either case. He also warned if contact is ordered it may be less than the Applicants sought.

Conclusion

This judgment does underline the need for care to be taken when mothers decide to chose a named donor. The fact that the mothers are named on the birth certificate does not mean that the donor has no rights. Gay father/ donors need to know that they do not have automatic rights to contact. It is sensible before embarking upon such a process that a legal agreement be drawn up.