Negotiating with a Known Donor
As single women become Choice Moms, it is critical to understand the laws and rules surrounding the definition of parentage, and to proactively work within the legal framework to protect your parental rights if you are using a known donor. Not only is it important for you, but it is important to protect the security of your child's relationship with you and the donor - who is a genetic, but not a rearing dad.
Background
A majority of states have laws defining the parental rights of a donor. These laws state that:
- if a married woman
- with the assistance of a physician
- is inseminated with an anonymous sperm donor, then
- her husband is the legal father and the sperm donor has no legal responsibilities for the child.
These laws were passed primarily during the 1970s and early 1980s, although these issues were litigated during the 1950s and 1960s.
The problem is, as people deviate from the strict criteria defined in the statute, the bright-line determination that the sperm donor is not the legal father becomes very blurry.
For example, if a single woman uses an anonymous sperm donor, is the donor still relieved of parenting obligations?
If a married woman obtains anonymous semen directly from a sperm bank and home inseminates, is her husband still the legal father?
If a single woman conceives with the assistance of a known donor, does the known donor have any legal responsibilities toward the child?
As modern relationships have evolved to support single women becoming mothers, the antiquidated "artificial insemination by donor" (AID) statutes don't clarify parental relationships or provide guidance for Choice Moms on how to best protect themselves and their children.
Furthermore, as people come into greater awareness that children need to know, or at least need to be able to know, their genetic heritage and connectedness, the laws don't support the creation of healthy, open relationships. Secrecy promoted by the early AID statutes has not changed even though social and child-development policy has changed with the understanding that open relationships are very beneficial.
Legal Choices for Choice Moms
If a woman decides to conceive with the assistance of a known donor, there are several critical legal steps that she needs to complete in order to clarify her intentions with respect to the known donor. It is important to take these steps to protect her legal relationship with the child, and to avoid custody or support disputes in the future that can be very draining emotionally and financially.
Being very clear about the legal documents, including the birth certificate, can avoid needless hassles in the future, such as when it's time to secure a passport for your child.
The Known Donor Agreement
This is an agreement between you and the sperm donor, clarifying your intentions and stating your desires regarding future contact with the child.
Issue 1. If you use a known donor or open-identity program through a sperm bank, hopefully the sperm bank will provide this agreement; if they don't, ask about it!
Issue 2. If you use a known donor that is a friend instead of working through a sperm bank, you should prepare an agreement. The value of preparing this agreement is to have open and honest discussions about your's and the donor's expectations for the relationship now and once the baby is born.
Issue 3. Seek experienced legal advice in preparing this agreement. There are several pitfalls that could make the agreement unenforceable!
Donor Agreements and Medical Informed Consent Forms
Issue 1. If you are performing the inseminations at home, and are not involving a physician, then having an agreement is critical. It is also wise to document that the pregnancy occurred through insemination and not intercourse. If you decide to have intercourse then the man is clearly the legal parent, is responsible for child support, has custody and visitation rights, and has legal protections to ensure that his parenting choices are honored.
Issue 2. Don't rely on medical consent forms to determine parental rights and responsibilities. The consent forms at the physician's office explain the semen retrieval, storage, insemination process and risks, not the legal rights between you and the donor. Courts around the country have stated the medical consent forms are not documentation of parental intent or legal statements of relinquishment of parental rights. Just as it is foolish to take medical advice from a lawyer, it is dicey to accept, or rely on legal advice from a doctor, nurse, or medical clinic.
Compensation, and Future Support for the Child
Issue 1. Whether or not you compensate the donor does not impact the relinquishment of parental rights, or the donor agreement. If you work through a physician's office, be prepared for medical and lab expenses for the donor. Most clinics will advise or require the semen to be tested, frozen for 6 months, and the donor retested before the semen will be released to you. This is referred to as "quarantine" and is designed to protect you from sexually transmitted diseases, including HIV.
Issue 2. The right of support belongs to the child, and cannot be bargained away by a parent. This is a very important legal concept! Legal policy in the United States is based on the notion that a child deserves the financial and emotional support of two parents, and courts have gone out of their way to find two people to be financially responsible for a child. Courts have found known donors to be the legal father of a child.
A known donor agreement should not condition the provision of semen on the promise that the mom will not seek financial support for the child from him in the future. You can ask that the donor avoid establishing a parent-child relationship with the child. This is a critical issue to discuss with the donor so both of you understand the future financial risks of the arrangement.
Birth Certificate: the Legal Statement of Parentage
Issue 1. All states are required to issue a birth certificate. This will be initiated at the hospital after the birth of the child and before you're released to go home. The law determining the rights of a known donor are determined by the state law where the child is born, not where the child is conceived or where the parent resides.
Issue 2. If you do not want to grant legal rights to the known donor, do not place his name on the birth certificate! The birth certificate is a very specific, very formulaic legal document. Do not use this process as an emotional tool to ensure that the child knows his or her donor. As the mom, you have the emotional responsibility to share information with your child, and the known donor agreement is the appropriate legal process to support that.
If, in the future, you wanted to remove a known donor from the birth certificate, or you married and your husband wanted to adopt your children, you must go through a cumbersome legal proceeding to seek the court's permission to have the donor relinquish his parental rights. It's easier not to have the donor's name on the birth certificate from the beginning.
Like so many of the intensely personal decisions about becoming and being a parent, Choice Moms need to trust themselves to make the best decision, because there isn't one perfect method or singularly correct way to proceed. You and the donor need to develop a trusting relationship through honest communication. Negotiation tips may benefit your process to create what will be a dynamic and evolving relationship among you, the donor, and your child.
