Changes to donor and surrogate rights: what you need to know

Surrogacy can be a great option for those who are unable to conceive a child themselves. However, the law around surrogacy and donor rights can seem complex, and changes to donor and surrogacy rights recently came into place, affecting those who reside in the UK.

In this blog, our expert surrogacy solicitors outline the legal rights that donors and surrogates have and explain how these changes affect them.

How does sperm donation work?

Sperm donation is where a male gives (donates) his sperm to a couple or individual who otherwise may be unable to conceive a child (the reasons for this being wide-reaching).

Donors can donate sperm at a Human Fertilisation and Embryology Authority (HFEA) licensed clinic or by insemination at home.

What are a sperm donor’s legal rights?

Donors have ‘control’ of their sperm up to the point it is transferred. If you donate sperm through a HFEA licensed clinic, you will not:

• Be the legal parent of any child born
• Be named on the birth certificate
• Have any responsibilities to provide for the child financially
• Have any rights of how the child will be brought up
• Have any legal obligation to any child born

If you use an unlicensed clinic in the UK to donate sperm (or it is a domestic arrangement), you will be the legal father of any child and the above list will not apply, unless it is specified otherwise on the child’s birth certificate.

Can a child find their sperm donor father?

Yes. Since 1^st April 2005, donor-conceived people have been legally allowed to find out the identity of the sperm donor once they have reached the age of 18. If a person donated sperm before 2005, they were automatically anonymous but could choose to give this up.

In October 2023, the first donor-conceived people (now aged 18) affected by this change were able to apply for their donor’s details; including their full name, date of birth and last known address.

Blog | What are the legal implications of being a sperm donor?

What is surrogacy?

Surrogacy is an arrangement in which a person agrees to carry and give birth to a child for another person or couple. This may be because they are unable to conceive, choose not to, or cannot carry a child themselves.

The surrogate may use their own egg, a donor egg, or the egg of the intended parent for this process. In order for the surrogacy to proceed, at least one of the intended parents must be genetically related to the baby through either their sperm or egg.

Do surrogates have legal rights?

The surrogate is the child’s legal parent at birth. Legal parenthood can then be transferred by Parental Order or adoption after the child is born.

Surrogates also have the right to 52 weeks’ maternity leave. What the surrogate does after the child is born, e.g. if they transfer parenthood, does not affect their maternity leave rights.

Surrogacy is legal in the UK, but if you make a surrogacy agreement, it cannot be enforced by the law, even if you have a signed document with the surrogate and have paid their expenses.

A new pathway for UK surrogacy

In March 2023, the Law Commission of England and Wales, and the Scottish Law Commission published proposed reforms to improve outdated surrogacy laws.

The draft legislation includes the following recommendations for a new ‘gateway’:

• Those undertaking surrogacy through non-profit organisations licensed and regulated by the HFEA as Regulated Surrogacy Organisations will potentially have a route to legal parenthood from birth without the need for a court application.
• Intended parents must be at least 18 years old and surrogates must be 21 years old.
• There must be a genetic link from one parent with no double donation. Adoption remains the only option available for this.
• Parental Orders will remain available for people who do not fall within the gateway and, importantly, for those undertaking surrogacy arrangements overseas. For domestic surrogacy, the intended parent(s) should become the legal parent(s) of the child from birth, subject to the surrogate having the right to withdraw consent.
• At least one of the intended parents must have a connection to the UK; being either domiciled or habitually resident in the UK. This applies to the parents and surrogate if a new pathway is used.
• Surrogate-born individuals who were the subject of a Parental Order can access information on their birth mother from the age of 18. Individuals who were not the subject of a Parental Order can request information from the age of 16.
• The intended parent(s) should be allowed to pay for the surrogate’s well-being and medical costs, pregnancy support and travel. Payments towards living expenses, carrying the child and as compensation should continue to be prohibited.

Blog | The law on surrogacy and parental responsibility

Get in touch with our fertility lawyers

The laws around surrogacy and donors can be complex, but having a specialist solicitor on your side can help make things a little easier. If you need help with donor rights, surrogacy or any other fertility matter, get in contact with our fertility lawyers on 0117 325 2929 or fill in our online enquiry form.