Gillian Black and Robert Gilmour

The question for the court was whether, under English law, a stranger who provided sperm to father a child in an informal (non-clinical) setting should be recognised as the legal father of the child.

Back in 2020, we blogged on the issue of declarators of parentage, highlighting that Scotland lacked the statutory provisions which existed in England allowing a court to decline to make a declarator of parentage or non-parentage, even when the facts and law were clear as to where parentage lay. Our conclusion was that we in Scotland were overdue a conversation about these issues. This case suggests that conversation is now urgently needed.

The English case

A prolific sperm donor sought to be recognised as the legal father to one of the 180+ children he claimed to have fathered. (For Legally Blonde fans, this is surely the moment when Elle Woods would ask: “Why now? Why this sperm?”). The case has been referred to in the press as the “Joe Donor case”, a reference to the name used by the donor when promoting his donation services.

Although the “truth of the proposition” that the donor was the child’s father was “proved to the satisfaction of the court,” the court nevertheless did not make a declarator of parentage. In doing so it relied upon statutory provisions which apply in England and Wales, but not in Scotland.

There are two separate bases in English law by which a court may decline to consider or grant an application for declarator of parentage, both found in the Family Law Act 1986. Section 55A(5) states that “the court may refuse to hear the application if it considers that the determination of the application would not be in the best interests of the child”. Section 58(1) provides that when the truth of the proposition to be declared is proved to the satisfaction of the court, “the court shall make that declaration unless to do so would manifestly be contrary to public policy”.

Thus, where a declarator of parentage is sought, the three elements to be determined by the court are: (i) whether as a matter of fact the applicant is the genetic father of the child; (ii) whether it is contrary to the best interests of the child to determine the application; and (iii) whether issues of public policy justify not making the declarator.

In this case, all parties accepted that the child had been conceived as a result of the donor’s sperm, and the court concluded that it would not be contrary to the best interests of the child to determine the application. However, there were very strong public policy reasons for not recognising him as the legal father, and the declarator was therefore refused under s.58(1).

These public policy reasons were rehearsed in some detail by the president, and arose from the excessive and indiscriminate nature of the sperm donations made by the applicant, often to vulnerable women: “Not only are his actions outside the regulatory scheme, they are unregulated in a wider, moral, sense. On the basis of the findings made by the two judges, there is no indication that [his] behaviour is governed by any recognised moral principles, or is informed by the need for any of the checks and assessments present in the statutory scheme to ensure the genetic integrity of the process or to guard against any mental or physical health issues.” (para 83 of the judgment.)

Sir Andrew MacFarlane emphasised that this was very much a decision on the facts of the case: the public policy test in section 58 sets a high bar, which had been crossed in this case (para 88). Nevertheless, it provides guidance for when, in English law, the courts can refuse to grant a declarator of parenthood to a man who is the biological father of a child, and contains a helpful summary of the approach to be taken when applying the statutory test.

How might a Scottish court have dealt with the “Joe Donor” scenario?

Scots law

The question of who is the child’s legal father or second parent depends on whether the child was conceived naturally, through sexual intercourse, or by way of sperm donation. (The child’s mother is always – in the first instance – the woman who carries the pregnancy and gives birth.) In cases of natural conception, the common law provides that the father is the genetic father. Where the sperm was donated, then the relevant law is found in the Human Fertilisation and Embryology Act 2008 – a UK-wide Act, which produces the same result in Scotland as in England and Wales.

In Scotland, an informal sperm donor in the position of “Joe Donor” would need to raise an action for a declarator of parentage under section 7 of the Law Reform (Parent and Child) (Scotland) Act 1986. Critically, unlike the English 1986 Act, there is no provision here at all for the court to consider the best interests of the child or wider public policy considerations. All that seems to be required is for the party to establish that they are (or are not) the natural parent of the child.

This was the approach taken in the 2014 decision from Sheriff Kinloch in CS v JS and KS (C.S. AGAINST K.S. AND J.S. [2014] ScotSC 99 (04 November 2014)) – the action for declarator of non-parentage was made by the husband, in respect of the parties’ son, who was approximately 15 years old. The husband was able to show that, on the balance of probabilities, he was not the genetic father of their son, and that the son had been conceived as a result of another relationship. The Sheriff granted the declarator without considering the best interests of the child or any public policy issues – and there was no legal basis for him to do so (despite the potential harm caused to the child in setting aside a 15 year parent/child relationship).

Absent any test of the best interests of the child, or wider public policy considerations, would a Scottish court have to make a declarator of parentage in the “Joe Donor” scenario – despite serious concerns about the donor’s conduct, as expressed by the President and by two other English judges? Or is there another approach that could be taken?

One possible route would be to rely on the provisions of the UNCRC. Article 3 requires the best interests of the child to be a primary consideration in all cases, while Article 12 obliges parties to have regard to the views of the child. As a result of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024, the courts must now ensure legislation is applied in a way which is compliant with the UNCRC – but this only applies to Acts of the Scottish Parliament (s.6(2)(b)(i) of the 2024 Act). Since the Law Reform (Parent and Child) (Scotland) Act 1986 is not an Act of the Scottish Parliament, it does not need to be applied in compliance with the UNCRC. However, the 2024 Act also requires all common law provisions to be UNCRC compliant: section 6(2)(b)(iv) specifically refers to “a rule of law not created by an enactment”.

So, whereas the declarator provision is set out in the 1986 Act, the actual definition of a father still relies on the common law position, being the genetic or “natural” father. Could this provide a route in to relying on wider considerations of best interests and views under the UNCRC? And would the courts distinguish between conception which takes place through sexual intercourse, and that which takes place through unregulated insemination?

Whatever assistance the UNCRC might provide in relation to welfare issues, it would not provide an avenue to refuse an application on public policy grounds. It is somewhat unfortunate that, where an English court has decided to refuse an application on the grounds that it is manifestly contrary to public policy as established in the Human Fertilisation and Embryology Act of 1990 and 2008, a Scottish court may have to grant an identical application, notwithstanding that the same legislation is intended to regulate the practice of gamete donation in Scotland.

Ironically, however, the English approach arguably provides an incentive to seek a prolific and immoral donor: an intended mother who wishes a private donor with no ongoing role in the child’s life may get the result she wants by using a donor such as Joe Donor, where the court has a strong public policy incentive not to recognise him as the legal father. This in itself is potentially contrary to public policy, and something of a Catch-22 – albeit one that does not arise in Scotland.

While we await Scottish case law with interest, the time has surely come for these issues to be addressed at a policy level in Scotland.

Gillian Black and Robert Gilmour, SKO Family Law Specialists. A version of this article was first published in Bionews on 15 June 2026.