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Published On: September 5, 2022 | Blog | 0 comments

What are gamete donor rights in relation to their biological children?

What rights do donors have, and what applications can be made under the Children Act 1989?

For some, it is necessary to use egg or sperm donors in order to conceive a child. This might be because the couple are same-sex, the person is single or due to infertility issues. The English law states that children conceived in this way are entitled to receive non-identifying information about their biological donor from the age of 16 and identifying information when they reach the age of 18. It is worth noting that privacy is treated differently outside of the UK and the donor may be able to remain anonymous. Of course, this may or may not be something the child wishes to pursue.

A donor is generally involved in the fertility process as an altruistic act and is not seeking to be a parent in the traditional sense. However, is this always the case? What if a donor becomes curious about their offspring and changes their mind? In this article I will look at the case of MacDougall v The Children (by their Children’s Guardian) in order to extract useful guidance for practitioners.

What did the case involve?

This case involved the applicant, James MacDougall, in three linked contested cases. The applicant applied for parental responsibility and child arrangements orders for contact with 4 children with 3 different mothers conceived using his donor sperm. Mr MacDougall would not have been named on the birth certificates as he would not have been classed as the legal father. He therefore had to make an application to the Court to be involved in the children’s lives.

Mr MacDougall had a condition known as “Fragile X Syndrome” which he deliberately withheld when making the private sperm donation, as it had prevented him from being a sperm donor at a clinic. This is an incurable hereditary condition that can lead to developmental issues and low IQ. Mr MacDougall himself was described as a complex character with learning difficulties and being on the autistic spectrum. In fact, Mr MacDougall fathered 15 children in total without disclosing his condition to the mothers.

Background of MacDougall v The Children

Mr MacDougall advertised himself as a sperm donor on social media for lesbian couples. SW and EG were looking to conceive and found Mr MacDougall’s profile and contacted him. The parties entered into a written agreement that outlined that Mr MacDougall would have no rights in respect of any child born. The agreement did mention that he had Fragile X Syndrome but this was not explained to SW and EG in any detail. The document was apparently written in an overly legalistic manner and was difficult to understand. SW had problems reading and admitted she did not review the whole document.

Child R was born to SW in October 2018. Notwithstanding the agreement, SW asked if Mr MacDougall would like to meet the baby, which he did. He then saw R initially once a month, then once a week with the child staying overnight at his parent’s home. The relationship between SW and EG subsequently broke down and SW moved on with JC. Mr MacDougall had a lot of contact with R during the pandemic as he started living with SW. However, SW asked him to leave due to concerns about his behaviour. ln around June 2020 there was a serious altercation between SW and Mr MacDougall where he forced his way into the property. This tussle resulted in bruising to SW’s neck and back and to JC’s leg and hands. This was witnessed by R and other children. Contact with R was ceased after this incident.

SW later had a second child, P, using Mr MacDougall’s sperm, but with her new partner JC. This time there was no written agreement but SW said it was agreed that Mr MacDougall would have no contact with the child. Mr MacDougall never met P as they were presumably born after the June incident.

EG separately asked Mr MacDougall to be a sperm donor to her child. EG asked for a written agreement to state that he would have no contact with any child but Mr MacDougall was evasive and made excuses about signing a document. EG had difficulties conceiving with another donor and longed for a child so went ahead without the agreement. N was born in January 2021 and Mr MacDougall had no contact with that child.

In summary, three children were born following Mr MacDougall’s sperm donation to the separated couple and he had only had contact with one, yet made applications in respect of all three.

Mr MacDougall also donated sperm to KE resulting in child B. KE and Mr MacDougall commenced a relationship which broke down when KE had cause to apply for a non-molestation order against him. The circumstances of Mr MacDougall’s relationship with the child were therefore slightly different to when he was purely a donor to SW and EG. This case is being considered separately by the Court, due to the allegations and involvement of the local authority, and it will not be looked at in any detail in this article.

The Court’s Determination

In considering Mr MacDougall’s application for Parental Responsibility (PR), the Court considered the following criteria:

  1. The commitment shown by Mr MacDougall to the particular child;
  2. The attachment between MacDougall and the particular child; and
  3. The motivation behind the application.

The guidance is that the agreement at the time of conception is not determinative in relation to PR but could provide context when evaluating the above criteria. It can be seen that SW ignored the agreement in relation to R for reasons the Court assumed were financial (it later emerging she had received c£7,000 from Mr MacDougall). In considering whether to confer PR to a donor the following factors are relevant:

  1. Degree of involvement with child’s early life;
  2. Physical ability to care for the child;
  3. Desire to care for the child; and
  4. Support for the existing parent/mother.

Mr MacDougall was unable to set out clear reasons for seeking child arrangements orders and parental responsibility in respect of the children, which was a concern for the Court. It was not understood what his motivation was other than wanting them to know he was their father. This casted doubt over what he would do if parental responsibility was bestowed upon him and whether it would be mis-used. Mr MacDougall wanted to make decisions in the children’s lives “as the mothers do” but did not seem to appreciate the impact this would have on the families involved and how disruptive this might be. This lack of insight was of concern to the Judge and he questioned whether Mr MacDougall simply wished to control the two mothers.

The children had no attachment to Mr MacDougall by the time of the application and therefore the Judge had to seriously consider how he could exercise Parental Responsibility meaningfully to their benefit. Mr MacDougall’s lack of empathy, inability to exercise self-control in the Court and the deception in not revealing his hereditary condition also worked against him. The effect of him having contact with the children on the mothers, who vehemently opposed it, was also given due weight.

The applications were refused in respect of R, P and N. In relation to R, Mr MacDougall had a reasonably positive relationship but it did not outweigh the risk of harm in the Court allowing contact. The case was much more straightforward in relation to P and N as they had never met Mr MacDougall and he played no role in their life.

It is worth noting that the Court felt that even letterbox contact was too much of a risk and refused to allow it. A 3-year barring order preventing Mr MacDougall making applications was also put in place as he had indicated to the children’s guardian he would carry on applying until he secured the orders he wanted. This would clearly not be in the children’s best interests and the Court were proactive in preventing any further vexatious litigation.

Implications of MacDougall v The Children

The cost of fertility treatment can be significant and it might be tempting to take short cuts. However, this case highlights the risks of using private sperm donors that have not been properly screened and vetted by a clinic. Due diligence is an essential part of the donor process and is the reason why the Judge took the unusual step of naming Mr MacDougall in the press. There was no trust that Mr MacDougall would stop advertising his sperm and publishing his name was to provide a warning to others wishing to use his services.

This case also emphasises the risks of initiating contact with a donor after the birth. This can open the door to a relationship that was never intended and the possibility of significant litigation if a conflict arises between the parents regarding the development of that relationship and gamete donor rights. It is clear that choosing the right route to parenthood is therefore essential to avoid the wrong candidate, as this could end up costing the parents a lot more than money.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

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