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The legal angle on unregulated sperm donation

LSE law reproduction
Unregulated sperm donation in the UK happens almost entirely outside of the system of regulation what applies to sperm donation in the licenced clinics. So, all of those restrictions are not there. Restrictions, which involve testing of donors, which involve, assessment of the welfare of the child that is going to be born, which involves most importantly an accurate record of who the donor is, who the child is. None of that is there when women seek sperm donors online and as a result it is quite risky, It is risky for women. The donor could have, an infection that he could pass on.
The donor could be the carrier of a genetic disease and the child may have access to no information at all about their donor when they grow up. So, the protections that regulation provides are absent but it doesn’t mean that there is no law. The law that is there, is in a sense the ordinary law that relates to parentage and child support. So, in many cases the donor would be the legal father of any child that is born as a result. He would thereby acquire an obligation to pay child support throughout the child’s minority. So, again these arrangements have legal implications but none of the legal protections.
As a result of the fear of paying child support we know that some online sperm donors hide their identities and use fake identities and that is particularly dangerous because it means it is impossible to find out who he is and that might be important in the future. If the child, for example, develops a serious disease it might be important to find out about the family history if the donor was using a fake identity that will not be possible. Children born through licenced fertility treatment using sperm in a, in a licenced fertility centre will be able to have access to the identity of their donor when they reach the age of eighteen. Again, that may not be possible.
I think it is interesting that people are saying that they are accessing, either as donors or as recipients online sperm donation in order to have a relationship during the child’s minority. If that is, what people want we maybe need to think about that because we’ve assumed that actually it is in the best interest of families and children for there not to be contact during the child’s minority. Though of course it is completely open for people to use a known donor. So, one can take a, perhaps a relatively or a friend to a clinic for him to be a known donor and that obviously is then possible.
I do think we probably need to think about the ban on, any identifiably during childhood if it becomes evident that that’s something that people want access to. I think there would be some advantages to having a voluntary register just because the more information that is available to children in these circumstances the better. I think better still would be to bring all of these arrangements within regulation so that the protections the regulation office give to woman children are there for everybody. The way in which a donor can avoid being the legal father of a child born through their donation is to donate in a licenced clinic where he will not be the father of any child born as a result.
So if somebody is thinking about wanting to be a sperm donor but anxious about, legal obligations to child support there is a very simple solution and that is donate to a sperm bank where he will have no legal obligations towards the child at all. In the UK we’ve had, a system of regulation in place now for twenty-five years. It is, an almost comprehensive system of regulation and it is broadly liberal. There aren’t that many restrictions on access but the processes, the treatments are very tightly regulated in order to protect safety. So, I think regulation in the UK has broadly been successful and is very well thought of.
One of the things that I think is especially interesting about assisted conception now is the ease with which people can bypass those regulations and the willingness of people to do so. So, when the system of regulation in the UK came into being, in 1991, if you had difficulty conceiving your first port of call would be your GP and you go and see your GP and tell them you are having difficulty or you had a fertility issue and they might refer you to a clinic. You would be then safely within the regulated sector. Now, it is increasingly common for people who are having difficulty conceiving to go online and to see what is available there. Some of which is completely unregulated.
Some of which involves travelling overseas. So, in 2016 it is very easy for people to bypass regulated services in a way that it just wasn’t in 1991. So I think what we have to grapple with now and it raises important legal, ethical and social issues is the fact that we can’t guarantee that everybody who accesses assisted conception is going to do so in a regulated way, in a licenced clinic, where controls can be exercised. Some people are going to do it themselves. They are going to go online, are going to travel overseas where regulatory control just isn’t there.
So I think one of the most interesting things about, the law in assisted conception now, compared with twenty-five years ago, is the fact that we in a sense have two parallel spheres. We have the tightly regulated safe control provision of assisted conception on the one hand and we have what in some cases you might describe as the wild west of unregulated assisted conception on the other. And I think one of the things we really need to do is, is make sure people who go for the unregulated route do so completely with their eyes open knowing what risks they might be taking.

The regulation of sperm donation differs worldwide – some countries restrict access to heterosexual couples, for example, whilst others have no restrictions with regards to access. Regulation generally has two key purposes: to ensure that sperm donation is safe and effective, and to maintain an accurate register of information about donors and offspring.

In the UK, sperm donation falls within regulation through the licensing requirements set out in the Human Fertilisation and Embryology (HFEA) Act 1990. Without a licence, it is a criminal offence to ‘procure, test, process or distribute any gametes intended for human application’. If online sperm donation involved the ‘procurement’ of sperm, it would be unlawful unless licensed by the HFEA.

The reason why online fertility donation, the kind that John is providing, falls outside of the remit of the HFEA is because introduction websites, in which would-be donors and would-be recipients get in touch with each other by email and make their own arrangements, are unlikely to involve ‘procurement’, and hence lie outside of the HFEA’s regulatory control.

However, the lack of regulation means an absence of guaranteed safeguards, but it does not mean that the law does not apply. These arrangements might be made outside of regulatory control, but they nevertheless have legal implications, as Prof Emily Jackson explains in this interview.

In many countries, including the UK, if conception was through natural insemination (NI), the donor will be the legal father of any child conceived as a result, and he will therefore acquire an obligation to pay child support, and a right to be consulted about certain important decisions until the child turns eighteen.

In the absence of regulation, prospective parents and donors, who are likely to have been strangers to each other before meeting online, will often be navigating co-parenting relationships without legal advice. There is scope for these arrangements to go wrong, and if the parents and donor cannot resolve the disagreements themselves, it may be left to the courts to resolve questions of parental responsibility.

Join the discussion
Which of the points made by Emily Jackson did you feel were particularly interesting? If you do not live in the UK, what do you know about the legislation in your country regarding online sperm donation?

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