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DONOR INSEMINATION – A LEGAL PERSPECTIVE

Issues for Lesbians to consider with Sperm Donors

By

Deborah Wald

Deborah Wald

Courtesy of Deborah Wald
Many single women and lesbian couples looking to conceive turn to donor insemination, using either known or unknown sperm donors. Since the choices we make about conception can have lifelong legal impacts on us and our children, it is important to take the time to understand the law of donor insemination before starting the adventure of creating a family.

UNKNOWN DONORS:

For the most part, if a woman purchases anonymous donor sperm from a sperm bank, the donor will not have any legal rights to the child. This is the safest way for a single woman or a lesbian couple to assure that no one other than them will have parental rights. However, the choice to use sperm from a sperm bank can be expensive, especially given that conception can take many months. Also many women want their children to have the opportunity for contact with their genetic fathers that sperm banks generally don’t provide.

An increasing number of sperm banks are offering “identity release” programs. These programs offer mothers the protection of using a sperm bank, while providing the children with access to the identities of their donors once the children reach adulthood. This can be a good “middle ground” option for many women.

KNOWN DONORS:

Many single women and lesbian couples choose to use known donors for any of a variety of reasons, including that it can be cheaper, more personal, or they want their children to know their donors/fathers. However, women making this choice must be very careful to protect themselves legally.

Each state has its own laws about donor insemination. Some states have specific statutes that provide that sperm donors are not legal fathers if the donor provides his sperm to a physician and not to the woman directly. However, many of these statutes only explicitly apply to married women; it is much harder for a single woman or a lesbian couple to protect herself/themselves from the possibility of a donor suing to establish paternity. Furthermore, even in states with donor statutes there is some argument about whether these statutes apply to donors who have on-going contact with the child. And a number of states have statutes or cases holding that known sperm donors are, in fact, legal fathers, regardless of the intent of the parents. Many other states have no law at all on this issue.

It is imperative that single women and lesbian couples using known donors take the time to learn their state’s laws and consult with a knowledgeable attorney about any gray areas before becoming pregnant by a known donor – otherwise, there is a risk of a custody battle with the donor, and the donor risks being held financially responsible for the children.

If a lesbian couple having a child together is lucky enough to live in a state that allows second parent or co-parent adoptions, they should be sure to do one. This is the cleanest and simplest way to have both mothers recognized as full legal parents and to have the donor’s legal rights and responsibilities terminated by a court, thus resolving the donor’s legal role forever.

DONOR CONTRACTS:

Many single women and lesbian couples mistakenly believe that they can protect their families by entering into donor contracts which state that their known donors are not the legal fathers of their children. For the most part, parentage is determined by law, not by contract. There are two reasons for this: (1) the right to have parents lies with the children, who weren’t parties to the contract; and (2) it is against public policy to allow men who by law would be legally responsible for children to contract out of this responsibility. What this means is that a donor contract will not prevent a man from being a legal father if he would otherwise be a father under the law of the state in which the child was conceived and/or born. For these reasons, many states will not honor a donor contract, even if all the parties remain in agreement with its terms.

There are significant risks to all parties involved. The risk to a donor is that either the mothers or the state will come after him for child support if the mothers become unable to support the child themselves. This is a very real risk, as states around the country have become increasingly rigorous in enforcing their child support statutes.

The risk to the mother(s) is that a man they never intended to be a parent to the children will have an enforceable right to visitation – or even to shared custody – against their will. Again, this is a very real risk, especially for single mothers (given strong public policies in many states favoring two parent families) and for lesbian couples in states that do not offer the non-biological mother the opportunity to forge a legal relationship with the child through second-parent or co-parent adoption.

Keep Reading: Things to remember before proceeding with donor insemination.

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