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Court of appeal rules that parents of sperm donor have the right to see biological grandchild

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By Demelza Patricio

Couples who are looking to conceive a child with the help of a sperm donor often have concerns about how a court might “interfere” in their family relationships, either in the event of a couple separating in the future or if there is a breakdown in the relationship between the couple and the sperm donor.

It is becoming increasingly common for couples to consider using a friend, or someone they have met on-line for this specific purpose, as a known sperm donor. If the couple are married or in a civil partnership, they will be the child’s legal parents. The sperm donor has no parental responsibility and no financial obligations towards the child.

In recent times, in situations such as these, if the relationship between the legal parents and the donor have broken down and the donor applies for a Child Arrangements Order regulating the time the child can spend with the donor, courts tend to follow the status quo and look at the type of relationship that the child has had with the donor historically. For some children this will mean only “identity contact” where they see the donor once or twice a year as they have a biological link to him.  For other children this may be a closer and more structured relationship.

In the recent case of Re: G (a child) (2018 EWCA CIV 305), a sperm donor applied for a Child Arrangements Order to enable him to see the child regularly and on making the order the Court also decided to order that his parents should be able to spend time with the child.

In this case, the sperm donor had been a friend of the couple, who were civil partners. For the first three years of the child’s life, the child saw the donor weekly or fortnightly by agreement.  He did not have a parental role but was a familiar figure in the child’s life. The donor’s parents met the child and the legal parents and they all attended family events together.

After difficulties in the relationship between the legal parents and the sperm donor, they tried to reduce the amount of time that he spent with the child. There was an 18 month period when the donor and his parents did not see the child. As well as making an order that the child should see the sperm donor 7 times a year, the Judge also decided that the parents could attend 2 of the contact sessions to provide the child with a “greater sense of and understanding of his paternal lineage”.

The legal parents appealed against the decision but it was upheld.

Some parents faced with this kind of situation may worry about the impact of a donor’s parents being able to insist on time with their child. However, in reality in this type of situation a court would usually follow the established pattern of the child’s time with important adults in his or her life (barring any recent disruptions) and look at what is in his/her best interests.

The important message for parents in this situation to take away is that they should ensure that both their donor and the donor’s wider family have a clear understanding from the outset of the kind of relationship that they will have with the child. The parents should not agree to the child spending any greater period of time with those people than they are comfortable with. Once there is an established pattern in place it is difficult to move back from that. Each person’s situation will differ depending on the relationship between the parents and the donor and their (perhaps differing) perceptions of what is best for the child.

It is usually best if both the parents and the donor can try to think through the situation before the child is conceived to try to avoid misunderstandings happening later.  I would always recommend that parents and a donor enter into a Sperm Donor Agreement to record their intentions. Whilst this will not be completely binding upon any of them in future court proceedings, it is very good evidence of what is intended while making it difficult for one party to allege that something different had been agreed. Of course, both parents and the donor will need to keep it under review once the child is born. Whilst parents may have strongly held views about particular issues before a child is born, they might find those views change once the child is born or starts to get older. It is important that parents and donors who have entered into a Sperm Donor Agreement consider recording any significant changes to their relationship that differ from that set out in the donor agreement, again to try to avoid any difficulties in the event of the breakdown of the relationship.

Whilst this is the first case to confirm that a sperm donor’s parents have the right to spend time with their biological grandchild, it does not really change the position that the courts have been taking in these cases in recent times.

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