Outside the Box: Unregulated Donor Conception and LGBTQ+ Parenthood

Meeting your partner online used to be cause for embarrassment and spy-worthy cover stories about “how we met”. Nowadays, it is entirely unremarkable. Similarly, there used to be shame and secrecy attached to use of assisted reproduction methods such as In Vitro Fertilisation (IVF). Again, wider use has brought greater understanding; with around 1 in 31 births now being the result of IVF treatment – roughly one child per classroom – it has been destigmatised.

In both cases, the social stigma has generally applied for longer, and more acutely, for heterosexual persons. The LGBTQ+ community are, by necessity, quicker to adopt innovative approaches to life-building. Far from shame, such innovations are often cause for celebration. This is unsurprising in circumstances where being LGBTQ+ is still punishable by death in some countries, and even ‘progressive’ countries are still only within their first decade or so of equal marriage. This is a community which has always had to creatively and bravely life-build amidst structures that inadequately recognise, protect, and provide for them. The consequence is that “thinking outside the box” is standard operating procedure for most in the LGBTQ community; whether by way of creative joint finance structures before the financial benefits of marriage were lawfully accessible, discreet community gatherings in window-less venues before simply existing was lawful, or creating concepts of  drag mothers, Houses, and chosen family in lieu of biological family support. 

This is essential context when considering the legal landscape and challenges surrounding LGBTQ+ persons and parenthood. In England and Wales, legally protected and recognised pathways for LGBTQ+ persons to become parents do exist; however, many still pursue old and new “outside the box” pathways which can leave children and parents in a vulnerable position. The result is a two tier system: those LGBTQ+ persons whose parenthood rights are secure, and those whose parenthood rights are not.

This article focuses on one aspect within this problem – donor conception.

Donor Conception

Donor Conception refers to the use of donated eggs, sperm, or embryos to assist an individual or couple to have children. This is not only relevant to LGBTQ+ prospective parents. Single persons and heterosexual persons can also utilise donor conception in order to have a child. However, cisgender[1] same-sex couples seeking to conceive a child will necessarily require the use of donor conception. 

The Human Fertilisation & Embryology Authority (‘HFEA’) regulates fertility clinics and official donor conception in the United Kingdom. Any arrangement outside of a licensed clinic is a private, unregulated, arrangement with potentially serious consequences in terms of health, welfare – and legal parenthood.

Parenthood and Donor Conception

The court has considered what parenthood means. In Re G [2006][2] Baroness Hale offered language which categorised varying forms of parenthood:

“There are at least three ways in which a person may be or become a natural parent of a child, each of which may be a very significant factor in the child’s welfare… [T]here is the genetic parent… the gestational parent… [and] the social and psychological parent.”

The genetic parent is the provider of the gametes—the sperm or egg. The gestational parent is the person who carries and gives birth to the child. The social and psychological parent is the person who has undertaken day-to-day care of the child and with whom the child has formed a genuine emotional bond. These types of parenthood need not – and often do not – fall upon a single individual or solely between a two person pair.

However, there is a distinct line in the sand in the form of legal parenthood: the person or persons whom the law recognises as a child’s parent/s. The impact of this status is significant: it creates a relationship protected and recognised by the state, providing rights for both the parent and child. It brings key consequences in terms of nationality, finances, and inheritance. It also carries deep emotional significance.

Legal parenthood

The Human Fertilisation and Embryology Acts 1990 and 2008 (“The HFEA 1990/2008”) govern the allocation of parenthood in cases of assisted reproduction and donor conception.

The starting point in law (section 33 HFEA 2008) is that the person who births a child is always the child’s legal parent at birth. This is the case regardless of whose genetic material has been used, or the existence of a clear surrogacy arrangement; the birthing person is the child’s legal mother. It is right to note that there are challenges around the language of birth “mother” for trans birthing persons – another gap, but not the subject of this article.

A child can only have a maximum of two legal parents. This means that two cisgender men who pursue parenthood through surrogacy are currently unable to be the child’s legal parents at birth. In fact, if the surrogate is married, her spouse may be treated as the second legal parent before the court order sought by the commissioning parent/s effectively remedies the legal parenthood situation. That is the sole, and essential, route to parenthood for the two men in such a scenario. In Whittington Hospital NHS Trust v XX [2020] UKSC 14, the Supreme Court described surrogacy law as “fragmented and in some ways obscure. In essence, the arrangement is completely unenforceable. The surrogate mother is always the child’s legal parent unless and until a court order is made in favour of the commissioning parents. Making surrogacy arrangements on a commercial basis is banned.” 

The only route to gain legal parenthood for both fathers is by way of seeking a court order after the child’s birth; a parental order under section 54 HFEA 2008 requires the surrogate’s unconditional consent.

Turning to same-sex female couples who have used donor conception, who is regarded as the second legal parent depends on a few factors.

Any conception through sexual intercourse, regardless of whether that was intended/agreed as a means of donor conception, and whatever the mother’s marital status, results in the biological father ultimately being the lawful second parent of the child.

Sections 36-45 HFEA 2008 set out various pathways to legal parenthood for a second person where the birth mother has conceived a child through artificial insemination (i.e. not sexual intercourse):

If the birth mother is married and conception took place artificially – then the mother’s spouse is automatically the second legal parent, unless it can be shown that they did not consent to the treatment. This is the case regardless of the spouse’s gender – Section 42 HFEA 2008 effectively replicates for wives of birth mothers the common law ‘marital presumption’ that a child is the legitimate child of a married couple, but with the additional protection that the genetic father – sperm donor – has no legal right to seek to correct that presumption and claim parenthood. That additional protection is afforded to husbands of birth mothers under section 35 HFEA 2008. These provisions protect spousal parenthood regardless of whether the child was conceived in an HFEA licensed clinic or in an informal community setting like home – so long as the conception was artificial.

If the birth mother is unmarried, the location of the conception and whether particular forms were signed prior to conception determines who any second parent is:

(i) If the conception takes place at an HFEA licensed clinic then the sperm donor is never the legal father. The mother’s partner can be the second legal parent of the child if specific consent forms are signed prior to conception taking place, whereby it is clearly agreed that the partner will be the second parent. Sections 43-44 HFEA 2008 provides for this pathway in the case of unmarried female couples and Sections 36–37 provides the same for unmarried opposite-sex couples, requiring “clear evidence of the parents’ intentions.

(ii) If the conception takes place outside of an HFEA licensed clinic, then even it occurring through artificial insemination rather than sexual intercourse does not prevent the sperm donor from being recognised as the legal second parent/father. The mother’s partner, if she has one, has no status at birth.

These provisions are further supported by the explicit defining of who isn’t a parent at sections 41 and 45:

41 Persons not to be treated as father

(1) Where the sperm of a man who had given such consent as is required by paragraph 5 of Schedule 3 to the 1990 Act (consent to use of gametes for purposes of treatment services or non-medical fertility services) was used for a purpose for which such consent was required, he is not to be treated as the father of the child.

45 Further provision relating to sections 42 and 43

• Where a woman is treated by virtue of section 42 or 43 as a parent ]      of the child, no man is to be treated as the father of the child.

Outside the box:  LGBTQ+ parenthood and donor conception

Cisgender male same-sex partners are entirely dependent on surrogacy and egg donation if they wish to conceive a child. The surrogate may or may not also be the egg donor, but she will always be the birth mother and legal parent at birth. It is unlawful to pay a surrogate for her services in the UK, which makes it a practically difficult option. This can push prospective parents abroad to less regulated and highly expensive options. Issues can arise here; a parental order under section 54 HFEA 2008 to obtain legal parenthood for both fathers requires the surrogate’s unconditional consent – which can become problematic in overseas arrangements through agencies with anonymous surrogates (consider Re H (Anonymous Surrogacy) [2025]). A surrogate is also able to change her mind, and proceedings would then need to determine the outcome which is in the child’s best interests.

Married, female same-sex partners who use donor conception are protected in parenthood (provided the child was conceived through artificial insemination, not sexual intercourse) under the HFEA 2008. It is worth noting that some LGBTQ+ persons reject the concept of marriage (having been excluded from it for so long) and choose not to marry despite being in long term relationships. That position may be considered somewhat of a luxury in light of this legal framework around parenthood.

Security of parenthood for unmarried female partners is entirely dependent on their ability to access an HFEA licensed clinic for treatment. There are a number of reasons that they might not be able to do so, or may choose not to do so, despite the risks :

• the prohibitively high cost of licensed treatment – tens of thousands of £;
• the lack of racial diversity in the available donor pool and a desire to have a child who reflects a particular heritage or will not have to experience looking dramatically different from their parent/s.
• that regulated sperm donation is effectively anonymous (currently, a donor-conceived child is only able to obtain the donor’s information once they reach 18 years old) and wanting the child to grow up with a better knowledge of, or even a relationship with, the donor;
• discomfort with the clinical process of conception
• ignorance, mistrust, and/or fear of the law; assumptions that it does not cater for them
• ignorance, mistrust, and/or fear of medical institutions and commercial fertility services
• lack of awareness of the health and other risks of pursuing unregulated donor conception

Due to the necessity of donor conception for LGBTQ+ persons seeking to conceive, the community is disproportionately affected by a clinic-centred statutory framework for parenthood.  The above barriers to accessing the legally secure pathways to parenthood are not trivial. The financial barrier alone pushes many towards informal arrangements with friends, or unregulated commercial exchanges. This is where legal challenges and problems generally arise. There are unscrupulous individuals capitalising on the gap and selling their sperm on the internet (note the entire category of case law relating to one such donor, Robert Albon – most recently Re N [2026][3] ).

Of course, there are countless risks that arise from these unregulated arrangements beyond issues of legal protection of parenthood – health risks in terms of the lack of screening of the sperm, safety risks in the logistics of donation, social risks in the lack of control around number of donations from a single donor. This can be very sinister; the charity sector has recorded reports of informal donor arrangements in which the ‘donor’ has arrived to donate to same-sex female couples at a hotel room or private home and then insisted at the last-minute on providing the sperm ‘naturally’  via sexual intercourse.

Even for married same-sex female partners, the ability to be secure in parenthood regardless of where the artificial insemination takes place does not prevent these other risks arising from informal arrangements outside of a clinic. 

In all the circumstances, the current legal framework means prospective same-sex female LGBTQ+ parents are fundamentally impacted by how accessible these clinics and treatments are, and how well the clinics’ provisions meet the needs of those seeking donor conception. It is perhaps no wonder that alternative pathways continue to be pursued by so many.

In short:  the better the box, the less need there will be to think – and act – outside of it.

[1] people whose gender identity matches their sex assigned at birth – people who are not transgender.

[2] Re G (Children) (Residence: Same-sex Partner) [2006] UKHL 43

[3] Re N (Paternity: Unregulated Sperm Donor) [2026] EWHC 878 (Fam)