**What is a known donor contract?**
What is a known donor contract?
A known donor contract is a legal contract in which a known (or identifiable) sperm donor agrees to a transaction with individuals or a couple (usually a lesbian couple) who are trying to become parents. Prior to the widespread availability of sperm from sperm banks, sperm banks didn’t exist, and anyone wanting to become parents would find a person to donate sperm and then they would enter into a known donor contract. Most people have heard of the term ‘known donor’—but they don’t really know what it means. A known donor contract is meant to be an enforceable legal contract that sets out the rights and obligations of the parties (the parents and the donor), sets out what each party will do, and sets out what will happen if the parties don’t keep their commitments as agreed . A known donor contract is intended to ensure that everyone has clearly communicated their intentions and the contract can be used in the event something goes wrong, such as the parties moving or losing contact with one another. It also helps establish legal parentage so that the parties can register the birth of the resulting child and avoid confusion for all concerned. Having a known donor contract is an extremely important aspect of a donation agreement. It helps everyone involved understand the exact parameters of the arrangement, and therefore helps the parties avoid conflict. It offers protections to the prospective parents since the child (or children) will, at the very least, have a legal relationship with the donor regarding financial support.
**Key Components of a known donor contract**
Known donor contracts are extremely important. In fact, I can think of no other situation in which it’s so important to get everything down on paper. For these Agreements to work, they must be drafted in such a way as to satisfy the demands of all parties. The key to a successful known donor contract is to look at the needs and considerations of all parties, and to address all of them in the Agreement. To this end, a standard known donor Agreement should include the following elements:
Donor confidentiality clause
This clause should state that the mother will do her best to keep the donors identity confidential, but she won’t make binding promises to do so. There are situations where keeping the donor’s identity confidential might not be realistic. Depending on how the mother will be inseminating herself (at home, in a doctor’s office, at a party), it may be impossible to keep the identity confidential. If there are siblings or other family members involved, it may be difficult to keep the donor’s identity confidential.
Definition of parental rights
This section should define parental rights and obligations. It should also state that the donor or her child has no rights or obligations of any kind. Both parents should have the traditional parental rights, obligations and duties which apply under the parentage act. These include the following:
If-despite the definition of parental rights, obligations and duties-the donor has indicated that she or he does not want to know the child, or to be part of the child’s life, or to know about the child (and it’s mutually agreed upon), it can be specified that he or she has no parental rights or duties of any kind.
It can also be specified that the donor would have no rights to visitation, custody, or parenting time, or no rights to know about the child, or to communicate with the child, no rights to any sort of medical or educational information about the child, and that there would be no duty to support the child.
Of course, it should also cover what happens if the donor later wants to assert parental rights.
Donor obligations
This section of the Agreement should detail exactly what a donor is obligated to do, if anything.
Donor financial obligations
This section should be drafted clearly to set forth exactly what the donor’s financial obligations are. For example, is the donor obligated to pay for insemination, prenatal care, labor and delivery, insurance, the cost of raising the child or other medical costs?
A donor might also be obligated to pay child support to help raise the child over the course of his or her life. Thus, the Agreement should contain a specific section on child support obligations, including the applicability of the State Child Support Guidelines or a specific agreement that the Guidelines don’t apply. It can also cover things such as whether the donor’s financial responsibility changes if he or she later asserts the right to visitation or when the child later reaches adulthood.
Donor rights
Donor rights should be limited to those that are mutually agreed on by the parties.
Other issues
Other issues to address in a known donor contract include: Whether the donor would be entitled to medical information about the child; What happens in the event of the donor’s death; What happens in the event of a divorce between the parties.
**Legal implications and state laws**
When it comes to drafting a known donor contract, there are a number of legal considerations that should be kept in mind. First and foremost, if the known donor is not a family member, you will more than likely also need to consider adoption proceedings after the baby is born and the details of that proceeding should be considered while drafting the known donor contract. You will also want to determine whether you intend for the donor to have visitation rights or any parental rights in the future.
In addition to the legal considerations listed above, a known donor contract may also be impacted by state law. These laws vary from state to state and therefore, it is important to at least consult with an attorney in your state who can help determine how state law might relate to the known donor contract you are considering. For instance, while many states have yet to adopt law on the issue, some states like California have passed laws specifically related to assisted reproduction and known donors. In California, certain statutory provisions make a known donor contract enforceable in the context of sperm donation to a single woman. In such cases, the sperm donor must be an anonymous donor and any contract entered into must be in writing. Here, the existence of a valid written agreement is sufficient to enable the sperm donor to avoid being considered the child’s father under California’s family law statutes – thus keeping him from any legal parental rights to the child. However, for an agreement to be legally binding upon the sperm donor, he must comply with California’s Health and Safety Code. Specifically, he must provide a blood sample for communicable disease testing, pay for the laboratory testing and donate the sperm to a sperm bank where his identity will be kept confidential.
As mentioned above, other states have yet to pass laws in this area and thus, enforcement of known donor contracts has been largely left to the courts. Courts have had varying views on the enforceability of these documents; in fact, most courts have been reluctant to enforce a known donor contract unless it indicates a clear intent that the sperm donor participate as a parent to the child. Because the issue of known donors is new, it is important to consult an attorney within your state to better understand the existing laws and how they might impact the known donor contract you are considering.
**Potential benefits of a known donor contract**
Having a known donor contract is beneficial for both the donor and recipient. It is important that this agreement is drafted by a specialized attorney and covers everything related to the agreement at hand. Though the drafting process may seem tedious, the peace of mind and control it will afford you is invaluable.
The biggest benefit to creating a known donor contract is that it will prevent future disputes with friends or relatives who may think your relationship was anything but platonic. Outlining your rights and obligations up front will also ensure the relationship doesn’t become unnecessarily strained if there are urgent medical, or emotional, needs in the future.
Creating a known donor contract will also ensure that your rights as a parent are clear, which is critically important if you ever face a medical or legal situation relating directly to parentage.
Aside from legality, it is important for a known donor agreement to clarify the expectations of all individuals involved. Without clear parameters, many donors, whether male or female, may expect to be more involved in the child’s life than the birth parents intended. Being upfront about what your agreement will mean for each party will give you the best possible chance of a healthy friendship and relationship between you all.
Requirements for a known donor contract will vary from state to state so be sure to consult with an attorney specializing in infertility and or family law.
**Common challenges and ways to overcome them**
There are three common challenges surrounding the drafting and execution of known donor contracts:
Missing Information
Sperm Donation, like Adoption, can be very fluid. What this means is that throughout the process, information about the parties and their arrangement may change. A good example of this is Mr. Smith deciding he wanted to relocate to another state. From this decision flows a myriad of legal and logistical changes for both parents. A reputable attorney will work with you and your family during this time to ensure all legal issues are addressed. For example: In this case, the Contract can be amended to reflect the move and specify how the child will be cared for in each state.
Lack of Consensus.
With most contracts in life, there is a need for all parties to have similar goals. It is important that all parties understand why a contract is needed and how a properly drafted contract can help prevent future problems. A good attorney will ensure that both the sperm donor and the intended parents have the same long-term goals. In the event that the two parties may not have the same long-term goals, a simple amendment may be the best course of action . For example, Mr. Smith and Mrs. Williams are not married but have agreed to a contract outlining sperm donation to Mrs. Williams. Both Mr. Smith and Mrs. Williams have separate insurance policies that will cover the child. Neither party feels that the custody of the child should be addressed at this time. Mr. Smith does not want any contact with his child’s life. Mrs. Williams, is open to an open adoption schedule, once the child is older. If at some point during the future Mrs. Williams realizes that she can no longer afford to raise the child, an amendment can be drawn up to remove Mr. Smith’s anonymity. This amendment will allow him to adopt his child.
New Legal Issues
As laws change, the issues surrounding a Known Donor Contracts. An excellent example of this is the recent legalization of gay marriage in many states across the US. A Known Donor Contract may not be clear on how parenting issues should be addressed. An attorney can easily amend a contract to address the legal issues that come with changing laws. There are various issues surrounding the use of a Known Donor Contract. A good attorney will help you avoid these legal pitfalls when drawing up a contract.
**How to draft a known donor contract**
The process of drafting a known donor contract begins with the family and the donor meeting to discuss their thoughts and reasoning behind known donation. They can then make notes as to what their expectations are of each other in the relationship. They can meet without lawyers or with attorneys involved. After the initial discussion, the next step is for an attorney to draft up the known donor contract. The attorney will go over the details of the contract with all parties involved. Items in the contract can include registration of a sperm bank for sperm that will be given / sold by the known donor, legal parentage and custody issues, rights of each party, non-disclosure of information about the child, a confidentiality clause, insurance coverage, living expenses, division of expenses, termination of the contract, time limits on the use of the donor’s genetic material and remedy in the event of default of any party. The contract should contain representations and warranties, severability and a confidentiality clause. Ultimately you want to make sure all bases are covered and that everyone involved understands what they are getting into. Consider hiring a mediator for an option as well. Having a neutral third-party to advise the principal parties can be extremely beneficial. Unknown donors do not sign a known donation agreement as they are anonymous in nature. But a known donor will sign the contract because they are willing to enter into a known relationship with the family being created. The donors or donee will almost always consult with an attorney to make sure that his or her wishes are carried out. As with any legal contract it is best to hire an attorney that is knowledgeable in reproductive law. This helps to ensure that your known donation complies with state regulations and is drawn up in a way that everyone is satisfied with.
**Learn from real examples: known donor contracts that worked and ones that didn’t**
Over the years, there have been a number of real-life cases that provide important lessons in the drafting of known donor contracts.
Consider Case Number John Doe v. Jane Doe. Here, the parties faced a situation where the male donor and the female recipient were in a romantic relationship, but anticipated that their relationship would not last. They were completely clear in their intent and goals and their contract reflected this perfectly. Their agreement was very specific and was as clear and simple as any legal contract could be. It was very short, consisting of only a couple pages. The clear intent of the contract was to avoid the male donor being in a parental role in the child’s life. This agreement served both parties very well, as they are co-parenting the child amicably and with a great deal of success.
Another example of a successful known donor contract is seen in the case of Bob Doe v. Sally Doe. Here, the donor is very involved in the family unit, having even chosen to move there as he fell in love with the sperm recipient in short order. After a couple years in their romantic relationship, it was decided that they would have a second child and again utilize the known donor contract. Again, the parties made their intentions clear. They were open and honest about the fact that they would not marry but rather co-parent. In the end, this makes sense and has worked really well. The board has rung and the home run has already been made. The donor’s involvement has been the same as it would be if the child’s parent were a woman, since he is in a lesbian relationship with Sally.
Of course, not every case goes this smoothly. In the case of Sue Smith v. Richard Smith , we find a problem that specialized legal counsel could have helped avoid. While the two parties made their intentions very clear, sadly, they didn’t make them as clear and enforceable in legal terms. As a result, Richard decided to retain the right to have a say in big decisions, such as school and health care for the children. He retained some binding legal rights over the two children. A few years later, when Sue decided she wanted to leave the relationship with Richard, he decided he would exercise his rights to have a say in the children’s education, recreation, health care, residency and religion.
While legally he did retain those rights, it is important to note that he had no actual rights as a father, which difficult in numerous ways. While his sperm had conceived the children, he had no biological bond with the children, nor did he have a legal bond. He did not even have the right to challenge Helen in a court of law when it came to her ability to become the sole guardian of the children. The court has given some rather stringent supervision over Sue’s ability to take the children from him. Thus, he was up a creek without a paddle, proving that not all known donor contracts go as planned.
In all three of these cases, the known donor contract was entered into with the utmost clarity between the parties. Unfortunately, only Richard ended up with something that he could hang onto legally, but the problems and issues he is now facing as a result of his sperm have opened the eyes of the other two donors. In the end, the lessons learned here come down to being specific and thorough. It is important to be upfront, open and honest. Do not assume that you will be able to trust the other parties, because in the end, it is possible that you will not.