Using a Known Donor Agreement: legal insight

One of our Choice Mom-friendly legal experts, Chris Tymchuck, of <a target=’_blank’ href=’http://www.uniqueestatelaw.com’>Unique Estate Law,</a> used third-party reproduction to build a family with her partner. Here is her special insight on what to know about the process of using a known donor.

One of our Choice Mom-friendly legal experts, Chris Tymchuck, of Unique Estate Law, used third-party reproduction to build a family with her partner. Here is her special insight on what to know about the process of using a known donor.

“In our case, my partner and I decided to use an unknown donor for several reasons. First, we didn’t know anyone we felt comfortable asking to donate for us. Second, as a lesbian couple, we were concerned about my legal rights as a non-biological parent after the birth of a child should the known donor decide to take an active role in the baby’s life. Third, we are extremely private and using a known donor required more openness and communication with “an outside party” than either of us was willing to handle.

While this was the best choice for us, if you decide to pursue a known donor relationship, here’s what I can tell you, as an attorney.

  • State laws vary on whether a known donor has any rights related to a child born using his sperm. For instance, Minnesota has a law stating that a sperm donor who provided sperm to a physician is not the legal father of any child born using that sperm.But, many statutes such as this one only apply to married women. As such, it is more difficult for a single woman or a lesbian couple to be protected from a known donor seeking to establish paternity.A number of states have statutes or case law that grants known sperm donors status as legal fathers without regard to the intent of the parents. Further, many states have no law at all covering this issue.
  • Many intended parents enter into a donor contract with the belief that they are protected in the event that the donor seeks paternity. But most states will use parentage law, and not contract interpretation, in determining whether a donor has any paternal rights. This is because courts would rather err on the side of protecting a child’s perceived right to an additional parent. Also, courts are loath to allow any potential responsible party from contracting out of parenting responsibilities.
  • Therefore, you will generally be required to have the known donor terminate his parental rights. But, this may be more difficult for a single mom to accomplish as many courts will only perform a voluntary termination of parental rights where there is someone else waiting to adopt the child. The most common situation in which this occurs is where a biological father voluntarily terminates his parental rights so that a step-father may adopt the child.If you do decide to use a known donor agreement, please meet with an attorney in your state to draft a known donor agreement. Before meeting with your attorney, you will want to discuss your expectations regarding the donor’s involvement in your child’s life.

The most common reason for any legal battle is miscommunication. While, a well thought out and well-drafted donor agreement may not offer ironclad protection for your family, it’s a good start.”

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