Legal status of male donor in embryo donation

Following a number of examples arising from recent court proceedings relating to the use of embryos by single women which were created using the sperm of their estranged partners, the HFEA highlights possible issues surrounding the legal position of the male donor in embryo donation arrangements.

• A woman who carries and gives birth to a child will always be the legal mother of that child at birth, although legal parenthood may subsequently be transferred to others, for example through adoption or through the granting of a parental order in surrogacy cases ? HFE Act 1990, s.27.
• Where a man has consented to the use of his sperm for the treatment of others (a donor, who has registered at an HFEA licensed clinic), and that sperm is used for that purpose, that man is not to be treated as the legal father of any resulting child ? HFE Act 1990, s.28(6).
• Where a woman who receives treatment with donated gametes or embryos is either married to, or receiving treatment together with, a man, that man and no one else will be the legal father of any resulting child unless, where she is married, it can be shown that her husband did not consent

Given the complexity of these issues the HFEA would like to draw centres attention to the guidance contained in paragraph G.6.9.1 of the HFEA Code of Practice (7th edition) "In any case in which people seeking treatment have doubts or concerns about legal parenthood or parental responsibility for a child born as a result of treatment services, they should be advised to seek their own legal advice."

The following examples relates to situations in which embryos that were created using the sperm of a man for the treatment of himself and his wife or partner are subsequently donated for the treatment of others. It does not apply where embryos were created with donor sperm and donor eggs specifically for the treatment of a third party.

In rare cases a single woman may be offered treatment with spare embryos donated by a couple following their own fertility treatment.

Example: A couple have successful IVF treatment and have completed their family with surplus embryos remaining in storage. Those embryos are then donated to a single, infertile woman, who is known to the original couple, and a child is born.

Will the child have no legal father or is the man who provided the sperm when the embryos were created capable of being treated as the child?s legal father?
If the woman has no partner while she is receiving treatment then there will be no man to be treated as the father by virtue of s.28 (2) & (3).
However it is not clear from the legislation whether if a couple donate an embryo that was originally created for their own treatment, the man could be treated as the legal father

This may be of particular of concern in ?known donation? arrangements where the identity of the donor couple is known to the recipient. If the donor is, and remains, anonymous it will of course be impossible to cite him as the father. In this case the donor may be in a similar position as pre-Act sperm donors.

Subsequent use of embryos created in the course of treatment together by estranged partners

A case before the high court highlighted this issue in relation to couples who create embryos using their own gametes in the context of treatment together but who subsequently become estranged before those embryos are transferred.

Example: An unmarried couple undergo IVF treatment together. Their fresh embryo transfer cycle is unsuccessful but a number of embryos are placed in storage. Before these can be transferred, however, the couple?s relationship breaks down albeit on amicable terms.

The woman still wishes to use the frozen embryos for treatment as a single woman and the man agrees as long as he is not to be treated in law as the father of any resulting child ? in other words the couple would no longer be receiving ?treatment together? and the man wishes to be treated simply as a 'known donor'. All consent forms are altered to reflect these new circumstances.

If the treatment goes ahead and a child is born, will the child have no legal father? Alternatively must the man be treated as the father of child?

These concerns do not apply in the case of a separated couple who are still married at the time at which the treatment is to take place: if the treatment is to go ahead at all, the man will not be able to show that he did no
consent to the treatment (since, as a gamete provider, his effective consent is a necessary condition for treatment to take place), and he must therefore, by s.28(2), be treated as the father of any resulting child.

The case is slightly different if the couple are not married or are divorced at the time at which treatment is to take place: in this case the man could consent to the use of his embryos, allowing the treatment to go ahead, without, however, the treatment taking place within the context of ?treatment together?.

However, in this case, too, it is arguable that owing to the circumstances in which the embryos were originally created the man will not be prevented from being treated as the legal father by s.28(6) and, as no other man is to be treated as the father by s.28(2) or (3), he is therefore capable of being treated in law as the father of any resulting child.