Natural insemination' sperm donor named parent on birth certificate by Dr Laura

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A UK court decision to name a sperm donor a child's legal parent, rather than the mother's wife has been upheld, because the mother secretly had sexual intercourse with the donor.

The case concerned the legal parentage of 'X', a six-year-old girl, born as a result of an 'informal conception arrangement' between the two women 'P' and 'Q' and sperm donor 'F'. They agreed to use artificial insemination (AI) but after two failed attempts P and F had sexual intercourse involving natural insemination –unknown to Q – which coincided with a third AI attempt. This was not revealed until P and Q divorced and disagreed over the care of the child, when P secured a court declaration in April naming F as the child's legal parent.

In the original court ruling, Mrs Justice Gwynneth Knowles declared the case 'a cautionary tale about the consequences for a child and for a same-sex couple of both deceit as to how that child came to be conceived and the unreliability of informal arrangements for AI,' adding that 'the fallout from this couple's separation has been devastating for each of them and for their named sperm donor.'

Justice Knowles concluded that Q had not consented to sexual intercourse between P and F,  and because the method of the child's conception was 'unclear', Q could not be considered a parent per the provisions of the Human Fertilisation and Embryology (HFE) Act 2008 which grants parentage to the wives or civil partners of women who give birth following AI.

Q appealed against the decision to replace her with F on the child's birth certificate. However, a three judge panel in the Court of Appeal of England and Wales upheld the original ruling, on the basis that because F was the genetic father and because Q had not proved that the provisions of the HFE Act 2008 on AI applied the court had to declare paternity in F's favour.

'Notwithstanding Q's commitment to X, her understood status as a legal parent arose from informal arrangements, with all their inherent risks', said Lord Justice Peter Jackson in the judgment. 'X exists because P and Q wanted her, and F was at that time no more than a means to an end. It may therefore seem strange that her parentage should be determined by the way in which she was conceived but, in this area, a line must be drawn somewhere'.

The judgment noted that F, P and Q had all obtained parental responsibility after a separate welfare hearing took place.