Significant changes in the law on egg and sperm donation
The law on egg and sperm donation is a very complex area which can raise deep concerns for those individuals going through the process.
Due to recent changes, donors will no longer remain anonymous from the date of the child’s 18th birthday. This has been seen by many as a fundamental change in this area. The Human Fertilisation and Embryology Authority (HFEA) is the key organisation that regulates egg, sperm and embryo donation.
One of the key principles with egg and sperm donation is consent and it is only in very exceptional circumstances that donations can be held without consent. It is possible for donors to vary or withdraw consent, but this must be communicated to all those involved in the process.
Consent also plays a key part when people wish to use egg and sperm donations following the death of a donor. It is essential that there is written consent from the donor and that this consent is very clear on its terms. This is a highly litigated area, but in some cases the courts have been seen to take a more flexible approach. In a 2016 case the Court of Appeal allowed the eggs to be used and chose to look at the wider evidence to determine the woman’s wishes rather than looking at the written consent in isolation.
For those involved in the process, it is important to understand their legal rights and obligations following the donation and the birth of the child. Those legal rights differ depending on the type of donor and the type of clinic that is used. If a sperm donor donates through a licensed clinic, they will not be the legal parent or have any rights over the child. However, if a sperm donor uses a clinic that is not licensed by the HFEA, they will be the legal father with legal obligations to financially support that child.
The woman who gives birth to the child will always be considered the legal mother, regardless of whether a donated egg is used in the process.
Some families choose to draw up a donor agreement which can set out their intentions when the baby is conceived. However, it is important to be aware that these agreements are not legally binding and that each party involved should seek independent legal advice before making any decisions.
Recent changes in the law on egg and sperm donation mean that donor-conceived children born from 1 April 2005 will now be able to request identifiable information about their donor from the date of their 18th birthday.
Previously, donor-conceived children were only able to have access to quite generic information, including their donor’s year and country of birth as well as their marital status. This information is also available to the parent.
Upon turning 18, the child will now have access to the donor’s full name, their date and town of birth and the donor’s most recent address held by the HFEA.
However, this information will still not be accessible to the child’s parent.
It has been suggested that those children conceived by a donor will be very eager to find out about their donor. The HFEA have launched their “Who is my Donor” campaign and have been eager to encourage donors to contact the HFEA to update their contact information to ensure that those wishing to locate their donor, will easily be able to do so. However, it is possible that this change could have some negative implications for those involved in the process.
The changes have raised concerns, however. Children living with a father and a mother who gave birth to them and who have supported them for 18 years will now be able to access information which clearly identifies their donor. This could have a potentially negative impact on the child’s life and cause distress for the parents.
Aside from the potentially negative impacts on the child, it is possible that allowing access to personal data of the donor, may discourage people from coming forward to be donors, which will cause greater problems for those families who suffer from infertility.
If you have any concerns surrounding the legal implications of donating or receiving a donation and the legal responsibilities that may result from this, please do not hesitate to get in touch with a member of Geldards’ Family Team, who would be more than happy to help.