This is a very unusual and interesting High Court case.
JM is a man who has been making private arrangements with women who want children to be a sperm donor for those women. He does this privately rather than through a clinic because clinics will not accept him as a donor.
They will not accept him because he has an inheritable genetic condition, Fragile X. He has assisted 15 women to have children through his donations.
He entered into agreements with the women at the time, that he would not have anything to do with the child.
Despite this, he made applications in relation to 3 children for parental responsibility and contact. In some of those cases, serious allegations were made against JM.
The Court was considering :-
- Whether to grant those applications
- Whether to make an order under s91(14) of the Children Act 1989 to bar any further applications without leave
- Whether to name JM in the judgment.
Obviously, the latter point is the most legally interesting.
Naming JM in the judgment
It would be an unusual step in a judgment such as this to name one of the parents. The usual approach is to anonymise the parents so as to protect the identity of the children. However, it is clear from Tickle v Griffiths that there are cases where the public interest in the naming of the parents is sufficiently great as to outweigh the risk of identification of the children and their Article 8 right to privacy.
There are strong grounds for naming JM. All three mothers and the Guardian support naming. Although JM told the Court that he had ceased to act as a sperm donor, a social media message from February 2022 suggested that he was still offering his services at that date. In the light of JM’s lack of honesty to his own mother, Mrs M, and his belief that he has done nothing wrong, he said he would be a sperm donor for any of the existing mothers so the children would have a “sibling connection”, I have no confidence that he will not act as a sperm donor in the future. I equally have no confidence in him fully explaining to any woman the true implications of his Fragile X Syndrome. There is therefore a very specific benefit in him being named in the hope that women will look him up on the internet and see this judgment.
As the Guardian suggests, there is a wider public benefit in the risks of private sperm donors being more widely known and considered. Publishing this judgment without anonymising JM raises the prospects of wider dissemination of the huge impact using JM as a sperm donor has had on these mothers.
If JM is named there is some risk that the children will be identified. However, R, P and N do not bear his surname, although B does. In any event, they are too young to be conscious of any internet comment. It is possible that they may become aware in the future of the facts set out, but it would be a sensible course for the mothers to explain the position to the children in an age appropriate way at some future date in any event.
Ms Robertson raises the negative impacts upon JM of his being named and identified as a sperm donor. I accept that there may be some negative impacts. However, JM chose to be a sperm donor despite knowing that he would not be permitted to go through a clinic. He also chose to make these applications despite the strong opposition of the mothers. There is no suggestion that JM does not have capacity in respect of these decisions. In those circumstances, the fact that JM will be identified is a consequence of the decisions he has made.
There is a wider point about transparency in this regard. The usual approach of anonymity in the Family Courts should not be used as a way for parents to behave in an unacceptable manner and then hide behind the cloak of anonymity. The provisions and practice in respect of anonymity in family law are there to protect the children and not the parents.
For all these reasons I consider this to be a case where it is appropriate to name JM.
(and now that I’ve dealt with that bit, I can tell you that the name of the case is :-
MacDougall v SW & Ors (sperm donor : parental responsibility or contact) (24 May 2022)
It would be fair to say that the Court was not impressed that James MacDougall fathered 15 children by way of sperm donation despite knowing that he had an inheritable genetic condition.
I also take into account the fundamental irresponsibility of JM acting as a sperm donor whilst knowing that he had Fragile X Syndrome, an inheritable condition, without at the very least making it entirely clear to the mothers concerned the implications of Fragile X. JM knew that he could not be a sperm donor through a clinic because of his condition. He told the Guardian that he thought Fragile X was not serious and it was for the mothers to do the research. Even if JM does not understand the true implications of Fragile X, he does know it prevents him acting through a donor clinic.
Although the agreement does refer to Fragile X, JM took no steps to explain the condition to SW or EG and no steps to ensure they understood. JM took advantage of these young women’s vulnerability and their strong desire to have children. This failure to take responsibility for his own condition, and to have any apparent concern for the long-term impact both on the mothers and potentially the children, is a factor in concluding that JM should not be given parental responsibility for the children
The Court did not grant him the Parental Responsibility Orders or orders for contact, and made s91(14) orders for three years (I should note that because one of the children had social services involvement, matters in relation to that child were adjourned and although the applications related to 3 children the Court only dealt with 2 for that reason)
Very unusual for a Court to name a parent in children proceedings, it generally only happens where there are committal proceedings, but one can completely see – particularly where JM said he intended to continue being a donor, why the Court felt it was appropriate that anyone deciding to take up James MacDougall’s services should know that he is a carrier of Fragile X and that googling his name is likely to provide a link to this judgment.
If you are undertaking any sort of fertility arrangement that does not involve a professional clinic (and even some of those aren’t great – google Suesspicious Minds + Port Harcourt for example) it would be a very good idea to get some independent legal advice first. The agreements JM had drawn up for these women was, the Judge said
The agreement is a closely spaced three page document in highly legalistic language which is difficult to read even for a lawyer