High court rules in favour of lesbian parents, refusing sperm donor’s application for contact

The High Court has refused a known sperm donor’s application for regular involvement with the baby he helped a lesbian couple conceive. Although Mrs Justice Theis had previously given the known donor ‘leave’ to bring a court application, she ultimately rejected the known donor’s application for alternate weekend and holiday contact, deciding that it was in the child’s best interests to only receive occasional letters.

The parties met through a donor/co-parenting website in 2010, but it was not until several years later that they decided to conceive a child. There is dispute as to whether the donor was merely donating his sperm or whether he thought he would have more involvement and an ongoing role in the child’s life. The parties put in place a written agreement (a pro forma they had found on the Internet) which said the donor would have regular contact with the child, but there was a disagreement about its significance and what was intended. The child was conceived via artificial insemination at home, and as the mothers were in a civil partnership, both were legal parents and were registered on her birth certificate. In these circumstances, the law excludes the donor’s legal fatherhood, notwithstanding his biological link to the child. However, previous cases have established that a donor may be able to secure the court’s ‘leave’ to bring a court application (and thereafter contact in some form) if he can establish a sufficient ‘connection’ with the child.

The donor became involved in the pregnancy and attended some of the scans with the mothers, and had some direct contact following the birth of the child, although always with the mothers present. Following concerns about his behaviour, the mothers stopped contact in October 2014. The donor brought an application to court, first for leave (which was granted) and then later for contact. He sought a role akin to that of a fully involved but separated father, which the mothers hotly opposed. Ultimately, on the facts and despite the written agreement between the parties, the judge felt that a significant role for the donor risked the child’s secure and stable family with her mothers. The judge said that the child’s welfare should be assessed “in the context of what her needs are now, not what the parties might have intended prior to her birth”. She noted the significant strain and emotional and financial cost of the proceedings to the mothers. The donor’s inability to accept a limited role had caused enormous distress to the parents and disrupted the primary family unit, and the judge did not feel that direct contact would benefit the child. Indirect contact once a year was ordered, deemed sufficient to meet the child’s welfare needs.

The case is yet another example of the pitfalls of known donor arrangements where the boundaries between donation and co-parenting become blurred. Mismatched expectations about the donor’s (or father’s) role almost inevitably lead to disputes, and the court’s response has varied enormously in case law on the ground because every situation is dealt with fact-specifically. Known donors have brought successful applications for direct contact with children, even where same-sex parents are the child’s legal parents, building on the connection and relationship they have already developed with a child. And even where, as in this case, an application is ultimately unsuccessful, the process of litigation is enormously costly and stressful.

How we can help

Prevention is, as they say, better than cure. We have long experience in helping parents, donors and co-parents in disputes like these, and know all too well the sensitive handling they require. We help through both mediation and legal representation.

But we also advise intended parents planning donor conception and those entering into co parenting arrangements who want to avoid problems like these from ever happening. The power of discussions, pre-conception, with all parties knowing the legal framework and with expectations aligned, can mean that the issues highlighted above are avoided. Whilst any written agreement will not be binding, the process of putting one in place (with expert guidance) enables thorny issues to be discussed, agreed and recorded in writing, creating strong foundations so plans can proceed from an informed and equal standpoint.


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