When Artificial becomes Actual

It might sound like a silly question, but when is a father not a father? The Human Fertilisation and Embryology Act 2008 provides that if a child is conceived by means of artificial insemination (AI) using donor sperm, provided the mother is married at the time of the insemination and her husband consents to the treatment, he will be the child’s father and afforded all the rights and responsibilities of a legal parent. The sperm donor will not be the father, although he is the child’s ‘biological parent’. But what happens if the husband does not consent, who then would be the father?

This very situation arose in the case of M V F and H, involving a Husband (H) and wife (W) who were unable to conceive naturally themselves. W therefore made contact with a man (F) who had advertised his services as an unpaid sperm donor on an internet website. Although W had initially intended to conceive by means of AI she claimed that the relationship with F became sexual and she conceived naturally as a result of sexual intercourse. F denied this claiming the child was conceived by means of AI with H’s consent.

The distinction here was important, because if the child was conceived my means of sexual intercourse F would be the father, whereas if the child was conceived through AI with H’s consent he would be the father. In this particular case, the Court found that M and F were having a sexual relationship at the time the child was conceived and that F was therefore the child’s legal father. It also found that whilst H acquiesced in the AI that took place at the first meeting between M and F it had been shown that he did not consent to it.

The interesting issue here, although it was not actually necessary for the Court to consider it in this case, is what the position would have been had the child been conceived by AI without H’s consent? Would F be the child’s legal father or would the child have no legal father? On a strict reading of the Act, neither F nor H would be the child’s father, so the child would be legally fatherless.

So who’s the daddy, well maybe no-one!

If you have any questions regarding the above article or any other issue regarding parentage or children, please contact the team at Bolt Burdon.