What is the law on legal parenthood after embryo donation?

The child's mother

Regardless of whether a child is conceived from a donated egg, or develops from a donated embryo, the woman who gives birth to the child will always be considered to be the child’s legal mother under family law. Only one person can ever be recognised as the legal mother of a child. Therefore, the donor of the egg (whether donated in the form of an egg or an embryo) with not have any status under family law.

The child's father/second parent

Who will be considered to be the child’s father may depend on the marital status of the birth mother. If the birth mother is married, her husband will be presumed to be the legal father of the child. This situation will only differ if it can be shown that he did not consent to the embryo being placed in his wife.

Prior to April 2009, if the birth mother was unmarried, but was being treated together with a man, the man was considered to be the legal father of the child under family law.

From April 2009, the law on paternity/second parentage has changed in relation to women who are not married and same sex couples. If the birth mother is in a civil partnership with another woman, her civil partner will be the legal second parent. As with the legal father, if it is shown that the female partner did not consent to the embryo being placed in the birth mother, she will not be the legal second parent.

If the birth mother is unmarried, the legal father or second parent of the child is the person who is named on the ‘consent to parenthood’ forms. Both people must consent to that person being recognised as the legal father or, where the partner is a same-sex partner, the second parent of the child.

A female second parent is not the legal mother of the child; family law does not allow a child to have two legal mothers.

Treatment of a single woman

The law in relation to the treatment of a single woman is less clear. When a donated embryo is used in the treatment of a single woman, she is the mother. However, family law is not explicit about who might be considered the father in such circumstances. This is particularly so when an embryo is donated to a single woman who does not have a husband or civil partner, or has not entered into a parenthood agreement with another person.

For further legal advice on legal parenthood after embryo donation, you are advised to contact a specialist family law solicitor.

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