Establishing parental responsibility following artificial insemination for female couples

It is becoming increasingly common for same-sex female couples to use intrauterine insemination (IUI), otherwise known as donor insemination, to facilitate becoming parents. Many couples will use licensed clinics to receive this treatment. According to the Human Fertilisation and Embryology Authority (HFEA), the average cost of such treatment ranges from £350-£1,000 for just one cycle of treatment. However, for women aged under 35, only 14% of IUI cycles result in a pregnancy, and these percentages become lower as age increases, with only a 6% success rate for women aged between 40 and 42.

Despite licensed clinics providing couples with the safety of knowing the medical history of their donor, the costly nature of this treatment and its low success rates are often deterring factors for couples considering the appropriate options for them.

This can lead to couples looking for donations on a private basis. This is an option that is permitted in the UK and that is preferable for some couples. They often feel it provides them with more privacy and control over the process, and it is far less costly as it is illegal to pay a donor anything more than their reasonable expenses, such as travel, to provide their donation.

However, while many couples acknowledge the risks of receiving donations in this way, such as having potentially little to no medical history of their donor, they do not recognise the negative impact that this choice has on their parental responsibility for any resulting children. The woman that chooses to be the biological parent will automatically have parental responsibility, but the situation is much more complicated for the second woman.

Under the Human Fertilisation and Embryology Act 2008, there are only two ways in which the second woman can gain parental responsibility:

  1. Marriage or Civil PartnershipA woman who is married or in a civil partnership with the biological mother at the time of conception will gain parental responsibility and will be treated as a parent of the child, unless it is shown that she did not consent to the artificial insemination of her partner.
  2. Treatment provided in a Licensed Clinic to a woman who agrees the other woman to be a parentThe second woman can gain parental responsibility if the woman who is artificially inseminated receives this treatment in a licensed clinic in the UK and at the time of the insemination the following conditions are met:
    • The second woman provides a written and signed notice to the clinic consenting to being treated as a parent of any child resulting from the treatment
    • The woman receiving treatment provides a written and signed notice to the clinic consenting to the second woman being treated as a parent
    • Neither women have withdrawn this consent prior to treatment
    • The woman receiving treatment has not given the clinic:
      • A further notice that she consents to a different woman being treated as a parent; or
      • A notice that she consents to a man being treated as the father of any resulting child
    • The two women are not in prohibited degrees of a relationship, i.e. they are not unable to marry each other.

Therefore, in situations where the second woman is not married or in a civil partnership with the inseminated woman, and where insemination does not occur in a licensed clinic, the second woman has no parental rights over any resulting child, regardless of whether this was the intention of the two women at the time.

This leaves the second woman with one option to gain parental responsibility; adoption. However, similarly to when adopting a step-child, the child must have lived with both women for at least 6 months before this adoption can occur. This means that the child will be at least 6 months old by the time the second woman can be known as a legal parent.

This can be very distressing for couples who intended to have children together and be treated as equal mothers, and it is therefore important that women are aware of this position when considering their options for becoming parents.

For further help or advice on this subject, please contact a member of our Family Law team on familylaw@woodfines.co.uk

Clare Wilkie