The judgment in the High Court made by Mrs. Justice Theis with regard to a sperm donor's battle to be permitted to contact his six-year-old daughter illustrates the vital importance of taking the trouble to have a legal agreement drafted and agreed among all parties. Individuals and couples attempting to create a family using a third party in the shape of a sperm or egg donor or surrogate, often from the LGBT community. Daniel Theron, a partner, commented "individualswho 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 latest 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. Regrettably, the lesbian couple and the sperm donor 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 sperm donor believed he had entered a co-parenting arrangement.

Initially, the couple tolerated limited contact with their daughter by the man and he spent some time with the child immediately after her birth and over time the couple decided that this was no longer welcomed. The parents began to have reservations regarding the man's concentration on his own rights, perceived lack of insight and focus on the adult conflict. They did not think that there was likely to be a change in attitude nor was there any concern for the reality of child's position. One parent demonstrated to the court the steps she had taken following advice she had sought to provide the child with a full understanding of her background in a way that was acceptable to a child of her age.

The man sought a child arrangements order from the court to allow him to be able to spend time with the child but this was not granted as the Judge believed that whilst a child should have knowledge of their history commenting "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 stated 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. The child's parents have now split up and she lives with one of her parents. The Judge felt that if the child, at some time in the future, expressed a wish to have contact with her father that this would be facilitated by the parent she lives with. The man was granted the right to send letters and photographs.

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 to such a sensitive issue as sperm donation understand and are in agreement. Even if all aspects of the issue are discussed and the expectations are set out, this does not preclude one or more of the parties involved will not change their mind or not adhere to the original arrangement. If a legal agreement is drafted and signed by all parties if there is an ensuing court battle it will be a persuasive document indicating the attitude of all those involved at the time of the arrangement.

Originally published 12 August, 2020

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