Negotiating with a Known Donor
If you decide to conceive with the assistance of a known donor, there are several critical legal steps that you should complete with him to clarify your expectations and intentions. It is important to take these steps to protect your legal relationship with the child.
Don't miss this special Choice Chat podcast show specifically about negotiating with a known donor.
Choice Mom adviser Ami Jaeger (Santa Fe) generously offers this advice (and more, available in the Choice Mom Guide to Fertility).
- The Known Donor Agreement is an agreement between you and the sperm donor, clarifying your intentions and stating your desires regarding future contact with the child. The value of preparing this agreement is to have open and honest discussions about expectations of both of you for the relationship before and after the baby is born. Seek experienced legal advice in preparing this agreement. There are several pitfalls that could make the agreement unenforceable.
- 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.
- Don't rely on medical consent forms to determine parental rights and responsibilities. Courts around the country have stated the medical consent forms are not documentation of parental intent or legal statements of relinquishment of parental rights.
- 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.
- 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.
- 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. 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. His name on the birth certificate will also make it more difficult for you to cross international borders without his permission.
Kristin Kali, a licensed midwife who provides fertility consultations at Maia Midwifery and Preconception Services in the San Francisco Bay area, works with many women who use known donors. "I counsel women to have very open and direct conversations with any potential donor about his sexual practices, as well as those of his partner. Techniques for avoiding disease transmission must be explicitly laid out, as well as what to do if there is a mishap. I advise my clients to lay down a ground rule that anyone can call off the donor relationship at any time, no questions asked. That way, if there has been a sexual transgression or a safety consideration of any kind, the sharing of body fluids can be called off without having to go into a lengthy or embarrassing explanation."
Important note: A growing number of independent websites and discussion groups have formed that connect donors directly with people who are in search of sperm. There obviously are no safeguards with this kind of contact. Many of the donors indicate they are giving altruistically, motivated only to help people create families. We are highly skeptical of anyone who chooses to work outside of a clinic setting, where they could provide altruistically as a directed donor, providing tested sperm that would pass a rigorous screening process. It might be tempting to get "free" sperm, but many individuals have reported that these donors tend to want to have sex, rather than donate for insemination.
At right, see several important documents:
1. Jessica is a Choice-Mom-in-the-making who created a list of comprehensive questions to discuss with her known donor candidates and help them put expectations into contract form. We thank her for giving permission to reprint her great series of questions.
2. Ami Jaeger supplied additional information to help you find the right legal expertise for a KD negotiation.
3. Fiona is a Choice-Mom-in-the-making, and a Canadian family attorney, who offered a sample agreement to use as a template for a known donor contract.
Also, Fernanda dealt with heartache when several KD candidates disappointed her. Here is her advice for women considering this route:
1. Never go by what people say they will do, look at their actions.
2. Don't take anything for granted, everything must be discussed and put in writing.
3. Work with ranges of possibilities rather than definites.
4. Be ready to consider many options at the same time.
5. Each cycle counts!
6. Yes, helps. No, helps. Maybe means NO!
7. People can change their minds, so can I.
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