We sometimes receive questions from patients and clinics regarding legal parenthood for patients seeking treatment with donor sperm or embryos created with donor sperm. For example, where a former patient returns to a clinic for treatment by herself (having previously had treatment with a partner) or returns with a new partner. The patient may be still married/ in a civil partnership with their former partner, or separated or divorced, or in the process of separating or divorcing, and does not wish their former partner to be the legal parent of any child that may be born. In some situations, the patient may have a new partner and the couple wants the new partner to be the legal parent of any child that may be born.
The Human Fertilisation and Embryology Act 2008 (the ‘Act’) sets out the conditions that must be met for legal parenthood to be established for patients using donor sperm. The fatherhood provisions are set out in section 37 and the female parenthood conditions are set out in section 44 of the Act. It is important that you read and understand these provisions. You can find these in the Mandatory requirements section of the HFEA Code of Practice guidance note on Legal Parenthood.
It is important that clinics always record whether a person receiving treatment is married or in a civil partnership in their notes, and explain to patients why this is relevant. If a person is having treatment with a partner, the centre should record whether they are married or in a civil partnership with one another, or with someone else. Clinics should be aware of this because this will affect who the second legal parent of any child born following treatment is. This is the case whether donor or partner sperm is used.
Valid consent must be in place for legal parenthood to be established. However, you may come across cases where establishing who will be the legal parents is more complex. It may be necessary for you or your patients to seek legal advice if they are undergoing treatment whilst still married/ in a civil partnership with their former partner.
Below are some common scenarios and advice about how clinics should deal with each scenario. Information provided in this article should be read together with relevant Code of Practice guidance on consent and parenthood.
- A patient has separated from her partner but is still married/ in a civil partnership with them. She comes in for treatment alone and wishes to use embryos created with her eggs and donor sperm that were left over from a previous cycle of treatment with her former partner.
Where a patient is married or in a civil partnership (and an order for judicial separation or a separation order have not been obtained there is a presumption that the other party to the marriage/ civil partnership will be the legal parent of any child that may be born. However, this presumption can be rebutted by evidence to the contrary.
Where appropriate and taking account of confidentiality a centre should attempt to contact the spouse or civil partner of the woman seeking treatment to obtain written confirmation of whether or not they consent to the proposed treatment. In seeking such written clarification from the spouse or civil partner, the centre should inform that person of the implications in terms of legal parentage in consenting or not consenting to the proposed treatment. If a patient does not wish her former partner to be the legal parent of any child born, then clinic should ensure that the patient completes the HFEA’s Stating Lack of Consent (LC) form. This form can be used to record any evidence which may rebut the presumption on parenthood. The patient should use the form to record the facts relating to her relationship at the time of treatment and her former partner’s lack of consent to the treatment.
Completing this form does not guarantee that the patient’s spouse or civil partner will not be the legal parent, but if legal parenthood is disputed, it is evidence that the Family Court may rely on. It is a record of the fact that at the time of conception,, in the patient’s view, their spouse or civil partner did not consent to their treatment. However, if unable to obtain written clarification from the spouse or civil partner, a centre cannot be certain that there will be no dispute as to legal parentage. In these circumstances a centre could consider not providing treatment until an order for judicial separation (in the case of a divorce) or a separation order (in the case of a civil partnership) has been obtained. When such an order has been obtained, the presumption that the spouse or civil partner will be a legal parent will no longer apply.
- A patient has separated from her partner but is still married/ in a civil partnership with them. She comes in for treatment with a new partner and wishes to use embryos created with her eggs and donor sperm that were left over from a previous cycle of treatment with her former partner.
If a patient is separated but is still married/ in a civil partnership returns for treatment with a new partner who wishes to be the legal parent there is still a presumption that the other party to the marriage/ civil partnership will be the legal parent of any child that may be born. However, this presumption can be rebutted by evidence to the contrary.
If a patient does not wish her former partner to be the legal parent of any child born, then clinic should ensure that the patient completes the HFEA’s Stating Lack of Consent (LC) form. This form can be used to record any evidence which may rebut the presumption on parenthood. The patient should use the form to record the facts relating to her relationship at the time of treatment and her former partner’s lack of consent to the treatment.
Completing this form does not guarantee that the patient’s spouse or civil partner will not be the legal parent, but if legal parenthood is disputed, it is a piece of evidence that the Family Court may rely on. It is a record of the facts at the time of conception and evidence that, in the patient’s view, their spouse or civil partner did not consent to their treatment.However, if unable to obtain written clarification from the spouse or civil partner, a centre cannot be certain that there will be no dispute as to legal parentage. In these circumstances a centre could consider not providing treatment until an order for judicial separation (in the case of a divorce) or a separation order (in the case of a civil partnership) has been obtained. When such an order has been obtained, the presumption that the spouse or civil partner will be a legal parent will no longer apply.
If donor sperm is being used in the treatment and the new partner wishes to be the legal parent, the patient and her new partner will need to complete the legal parenthood forms PP (Your consent to being the legal parent) and WP (Your consent to your partner being the legal parent)
- A patient has separated from her partner who she was not married to/ in a civil partnership with, but with whom she has previously completed WP/PP forms to establish legal parenthood. She comes in for treatment alone using donor sperm.
If the former partner no longer wishes to be recognised as the legal parent of a child born from any future treatment, then they should withdraw their consent to legal parenthood using the HFEA’s WC form (Withdrawing your consent). The woman receiving treatment should also complete the WC form to withdraw her consent to her former partner being the legal parent of any child that may be born as a result of her treatment.
If the clinic cannot obtain a written record of the former partner’s consent or lack of consent, it should record the steps taken to establish whether the former partner consents to the treatment in the medical records. Please note that this may not guarantee that the patient does not encounter problems regarding legal parenthood, and thus the patient should be strongly encouraged to seek legal advice.
- A patient is divorced/ legally separated from her former partner. She returns for treatment using donor sperm with a new partner to who she is married to/ in a civil partnership with.
The new partner, as they are legally married/ in a civil partnership with the patient, will be the second legal parent of any child born as a result of treatment.
Publication date: 9 April 2026