What Is a Known Donor Agreement?
A known donor agreement is a contract entered into between a sperm or egg donor and a recipient and/or carrier of the sperm and/or eggs. The agreement sets forth the material terms of the relationship, including consent to a particular process of artificial insemination or egg donation, health and suitability for the process, agreements with regard to the parties’ rights and responsibilities regarding the resulting child, agreements with regard to parental or donor rights, agreements with regard to whether the child may learn the identity of the donor at a later date, and any other issues which may be important for the parties to consider and set forth in writing.
The parties to a sperm donation agreement are the donor of the semen and the recipient of the semen, whether that recipient is the party in whom the natural insemination occurs, or whether the recipient has an artificial insemination.
The parties to an egg donation agreement are the donor of the egg and the recipient of the egg , whether that recipient is the party receiving the egg and having a wish to procreate a child through the process, or whether the recipient is a surrogate carrier in the artificial process of implantation of the egg in the uterus of a surrogate.
The general purpose of a known donor agreement is to ensure that the parties to the contract can agree upon and understand the various rights they may have; the rights they are willing to waive; or with where they may want assistance with regard to issues of parentage, visitation, and financial support. Party-changing circumstances, circumstances in the law, and circumstances in society may bring certain legal and other principles into play concerning the parties’ respect and protection.
However, the purpose and necessity of a known donor agreement is not complete without setting forth the foundation and reasoning of its broader contractual purpose.
Essential Elements of a Known Donor Agreement
Beyond the biological relationship, there is much more that needs to be agreed upon and put into writing. The following paragraphs discuss key areas for consideration.
Rights and Responsibilities – One of the most important purposes of the known donor agreement (also known as a sperm donor contract) is the purpose served by it being a legal document. We need the document to ensure that both parties understand that the sperm donor waives his right to be a legal parent and the recipient parent intends and agrees to be the sole legal parent of the child conceived and born using the donor sperm. This key premise must be laid out clearly at the very start of the agreement.
Confidentiality – Though today there are numerous co-parenting and parenting agreements that use social media and personal websites to promote the availability of sperm, sensitive privacy issues require that the contract be kept confidential and not publicly posted. Many donors do not want the mother or later, future children, to be aware that he has been involved in their conception. Some donors agree to never tell the mother that he has been involved through very clear language in the agreement. Extensive discussions with the donor prior to the donation should be done to ensure that future legal disputes do not arise related to his involvement. Sometimes donors agree to telegraph their identity when they donate sperm or donate in a way that allows the child to find them after they reach a certain age. Again, extensive discussion with the donor is very important.
The financial component is also an important factor because if his donation is perceived as a business transaction, it may have a bearing on whether the donor is treated as a legal parent. While some states allow donors to accept compensation for donations, not every state follows that guideline. Instead of providing for an exchange of money, typically, the parties build in consideration through the provision of counseling sessions, medical uninsured expenses or other expenses.
Parental Intentions – Perhaps the most important issue addressed at the start of the agreement is the point at which the parties enter into the agreement, they do so with the admission that each party intends to parent, not co-parent the child. Co-parenting arrangements have become prevalent in same sex marriage scenarios, opposed to sperm donor relationships. The precise nature of the arrangement should be addressed, even in heterosexual relationships.
Legal Implications and Things to Consider
Legal implications of known donor agreements are tenuous at best. Courts have long been reluctant to enforce known donor agreements both because they pose an inherent risk to the child’s welfare, and because they are unenforceable under current law. In C.E.M. v. K.G.M., (2013), a Minnesota case illustrates how courts perceive and treat known donors. The case drew on similar cases to dismiss the biological father’s parental rights that had been established under a known donor agreement. The court found that the biological father, "C.E.M.," was not the child’s legal parent, despite the signed known donor agreement. "The court concludes, however, that C.E.M. does not even qualify for the equitable parent exception because he never took on the role of acting as a parent to the child, nor has he acted in ways towards [the child] that would have made C.E.M. an equitable parent of [the child]. He never lived with the child; he never bought the child food, clothing, or shelter; he never paid child support; he never brought [the child] to his home; he never facilitated a relationship between [the child] and his half-brother (born to K.G.M. and her husband)."
Unlike typical child support and visitation agreements, there is no way for a potential child donor to be included in, or pursue visitation or custody over, offspring produced through artifice. Extant laws and court precedents do not apply, and thus the existence of a donor becomes a non-factor when considering legalese in the context of the child’s welfare. Are these rulings fair? Possibly. But producing an offspring as part of a known donation agreement is an act of parenthood. Maternity is absolute because the woman who birthed the child is legally the mother by default. The same is true for a marride couple. But the absence of a contractual obligation to contribute financial support or to share visitation responsibilities does not negate either a biological or functional parental role. Without legislation like that which has been enacted in California, New Jersey, and Oklahoma authorizing voluntary agreements between a recipient and a known donor, the absence of legal rights over a child for a donor may be interpreted as an absence of parental investment—unless otherwise addressed in court.
Advantages and Disadvantages of Using a Known Donor
The primary benefit of the known donor arrangement for many sperm recipients is that the person they have chosen will have a biological and legal connection to their future children. The known donor is able to play a role in the child’s life as a family friend (or potentially as an active parent) without a formal legal commitment. This option can also be beneficial for couples where one partner is not able or willing to bear a child, but the other wishes to have biological children. The fact that the involved parties know each other helps to clarify the parental roles and relationships.
However, since a known donor is also a part of a family, there is a chance that the donor and recipient will have underlying issues that could lead to future conflict. If a known donor is interested in living as part of the family, donors and recipients should consider what their expectations are before starting the process. Things may look good on paper, but if the donor’s true intention is to participate intimately in the child’s life, this could lead to conflict or changes in the dynamics later on. These situations are not uncommon, so it is important to be honest about intentions from the start. While it is impossible to foresee what could happen between prospective parents and donors, it is important to be on the same page early on.
It is also crucial to acknowledge the potential for emotional turmoil related to the process. Many donors and recipients are given a high dose of optimism before starting the process that can lead them to think the best of one another. However, once the actual donation takes place, many donors experience withdrawal, a feeling of loss or regret. Recipients may expect things to go back to normal with the donor, perhaps asking them to babysit or to continue contact. It is important to prepare for this emotionally charged process so that each party knows what to expect. Not only do all parties need to workout the relationship before the donation occurs, but the process should be questioned again afterwards. For example, the donor may not want to continue contact at a later date, but at that point (and even earlier on), there must be a legally binding known donor agreement in place to accurately set out an agreement between the parties.
In order to avoid pitfalls, it is important to always consult with a family law firm that has specific experience drafting known donor agreements. These agreements should be tailored to the relevant needs and concerns of each party, which may be unique depending on their perspectives and views on sperm donation.
How to Prepare a Known Donor Agreement
As with other types of agreements in the world of family law, to draft a known donor agreement you would start with discussions with the intended parents and the donor, or your attorney would do that as your agent. Given the unique circumstances of every assisted reproduction case, it is very important for the parties to understand the process and how they will fit in to it. Among other questions a known donor should consider are: Is the donor willing to waive his right to parental rights? What is the extent of parental rights that he will be agreeing to? What happens if the intended parents go through a divorce? Will the donor at that time still remain fully intact as a parent? Can the donor ever change his mind and sue to assert his parental rights and/or parenting time? Does the donor need to have contact with the child? What about contact when the child reaches adult age? Must the donors pay child support? Can the donor have a say in what type of religious education the child receives? Will the donor have any rights to medical information? Is there an age limit that either party is agreeing to?
In addition to consulting with one another , the intended parents and the donor should each consult with counsel. They should then be prepared to address the issues that arise from the parties particular circumstances as they relate to their situation. The final draft of the contract should be unique to their circumstances.
Case Studies and Precedents
One of the more common reasons people seek a known donor agreement is between lesbian couples who have decided to have children and they prefer to have the baby with a known donor rather than through an anonymous sperm donor. However, gay couples have also sought a known donor agreement. The following are some examples of cases that I have worked on in this area.
A lesbian couple each had a child with the same donor. They entered into an agreement with all three parties signing the agreement. The two mothers have custody of the child since birth. The father signed away all of his parental rights and responsibilities. The couple has the ability to add the father as a second parent to their child’s birth certificate if he wants to be listed as the father. I would recommend that he sign an agreement acknowledging that he is not the biological father and will have no rights to custody or visitation unless the couple so decides.
In another case, a gay couple entered into an agreement with a donor that the donor would have no parental rights or responsibilities and that the couple could pursue a known donor agreement if they ever decided to end their relationship. The couple’s child was born biologically to one of the men and 3 months later, the other man’s mother was killed in a car accident. Both of the men and the biological father stayed in the home with the child of both of the men and cared for him. In other words, all three of them lived together and cared for the child. When the biological father found another gay man to lover with, he moved out and moved the child with him. He then sought to custody of the child alone since his partner had no legal rights to the child. The mother contested claiming that the donor should have rights to the child since he was one of three primary caregivers.
We resolved the matter with all three men being named as planning guardians of the child. Each man had equal rights and responsibilities for the child.
I represented the lesbian mother in dissolving the domestic partnership that she was in with another woman and getting her the right to have the child I delivered as a domestic partnership child. Because we had an agreement stating that the other woman was not the co-parent, we were able to do this without any issues.
Common Queries
Will a Known Sperm/egg/embryo Donor Agreement be recognized and enforced in court? Courts in every jurisdiction will generally enforce Written Sperm/egg/embryo Donor Agreements in accordance with their terms, absent fraud. If a Donor is not a legal parent under the law, he or she does not have parental rights or responsibilities notwithstanding any agreement with sperm/egg/embryo Donation. As with all contracts, a Judge would interpret them based on the law in your state. In comparing the enforcement of known donor agreements versus anonymous donor agreements, known donor agreements can usually be enforced more easily than anonymous donor agreements because the parties are less likely to dispute the terms of the agreement because they have discussed the agreement before signing it.
What happens if a donor does not want to fulfill his or her role as a donor? Probably the most common challenge to an sperm/egg/embryo Donor Agreement occurs when the sperm/egg/embryo Donor develops a parental bond with the child. This is why it is recommended that donors only donate to a few families at a time and not keep contact thereafter . The biological connection to the child can be very strong. However, it is always the responsibility of the egg/sperm/embryo recipients to keep those lines of communication open. That said, if contact is kept, the artificial separation between the parties can become problematic. The sperm/egg/embryo donors are not parties to this agreement and as such will not be made parties to any legal proceedings. It is not the sperm/egg/embryo donors guiding responsibility to maintain that relationship after the fact.
Can the sperm/egg/embryo donor change his or her mind after the donation? Yes. However, once the individual or couple becomes pregnant or gives birth to a child, the sperm/egg/embryo donor waives all claims to parentage. Also, if you are using eggs, sperm or embryos from a known donor, it is critical that you properly draft the documentation between the parties and utilize the courts properly so that the donor cannot come back and establish paternity in the future, unless that was contemplated in the agreement.
