While the use of sperm donation allows same sex female couples to build their families, there are many legal pitfalls that can arise in the process. Same sex couples should always consult with an attorney who can advise them of how to best protect the rights of both mothers and also the child.
Mistake #1: Failing to Consider the Legal Ramifications of Using a Known Sperm Donor
A sperm donor can be either anonymous (through a sperm bank) or known. From a purely legal perspective, it’s less complicated to rely on an anonymous donation. In the case of known sperm donors, it is very easy to forget to ensure that the donor’s rights are completely terminated. Couples using a known sperm donor are advised to work with attorneys early in the process.
Mistake #2: Failing to Consider the Legal Ramifications of Various Medical Options
Artificial insemination is a cheaper and physically easier procedure to achieve pregnancy. However, with in vitro fertilization (IVF), both partners can be the biological parents of the child. IVF technology allows one partner’s eggs to be used to create embryos that are transferred into the other partner’s uterus (“Reciprocal IVF”). Same-sex couples using any form of IVF need to be certain to consult with an attorney early in the process as medical clinic consent forms are not typically designed to accommodate such family building options and the use of consent forms designed for heterosexual couples can create legal complications down the road. In particular, couples using Reciprocal IVF need to make sure that the egg-providing partner’s legal rights are not inadvertently terminated by signing medical consent forms that are typically used for egg donors.
Mistake #3: Performing an At-Home Insemination
Some states require that a physician perform the insemination procedure; other states permit at-home insemination. However even in states permitting at-home insemination, proceeding in this manner is risky because there is no independent third party (such as a doctor) who can provide testimony to the court about the manner of conception. Do you want your parental rights to hinge on whether or not a judge believes that you didn’t have sexual intercourse with your donor?
Mistake #4: Relying on the Birth Certificate to Establish Legal Rights
The non-carrying wife typically is able to get her name on the birth certificate without difficulty in New Hampshire. However, it is a mistake to rely on the birth certificate as conclusive proof of parentage because the courts have the power to determine otherwise. We see this happening frequently when the mothers move to another state, divorce or seek government benefits. We have also seen cases where sperm donors have decided that they want to play a parental role and have attempted to seek visitation time with the child. Most commonly, problems arise with known sperm donors but problems can also arise with anonymous donors. Generally, a second parent adoption is recommended for same sex female parents in order to fully preserve the rights of both mothers as well as the child and to ensure that the sperm donor’s rights are fully terminated.
Mistake #5: Relying on the Medical Consent Forms Signed at the Clinic to Establish Parental Rights
The medical consent forms signed at the clinic are an important part of the informed consent process, as they address issues directly related to the medical treatment such as procedures, benefits, risks and alternatives. However, if the clinic consent forms do not meet the exact requirements of the law for your particular situation, then they will not have the desired impact on the legal establishment of parental rights. It’s important to know that the law can be very picky in this regard. For example, the marital status of the recipients, the location of the clinic, the location of the birth and many other factors can impact whether the clinic consent forms are sufficient for your situation. This can result in unintended consequences, such as the intended father not being considered the legal parent under the law or one intended parent not being able to use the embryos in case of the death of the other intended parent. A consult with an attorney familiar with fertility law is important to protect your and your future child’s legal rights.
Mistake #6: Failing to Have a Written Agreement with the Sperm Donor
Donor agreements are an important part of protecting the legal rights of all parties because they memorialize the parties’ intent at the time of the donation. Additionally, donor agreements establish important obligations on the part of all parties. For example, the donor may agree that he shall not engage in high risk sexual behavior until he has completed the donations. Additionally, the donor may agree that he shall not have contact with the minor child unless the mothers are aware of and approve of such contact. Furthermore, a donor agreement is the best way to address the future use of any leftover frozen sperm.
Mistake #7: Using a Boilerplate Donor Agreement from the Internet
The Internet is full of sample donor agreements. These agreements are not tailored to the individual circumstances of a specific donation and thus can be both incomplete and based upon legal principles that do not apply to your situation. Using a boilerplate agreement is a recipe for disaster.
Mistake #8: Not Having Separate Legal Representation
Just as with any other agreement, both sides need to be represented by their own attorneys. A court could refuse to uphold an agreement drafted by an attorney who provided representation to both sides. Is this a risk you are willing to take?
Mistake #9: Allowing the Donor to Play a Parental Role
Sometimes it can be hard to figure out how a child should interact with a known sperm donor, particularly when the donor is a close family friend. However, when the donor takes on any parental role, things can get messy and the donor might subsequently be able to assert parental rights should he not be satisfied in his role as donor. This means that the legal rights of the mother who did not carry the pregnancy could be jeopardized and the mothers could be forced to share parenting with the donor.
Mistake #10: Failing to Include the Donor’s Spouse or Partner in the Process
The donor’s spouse or partner plays an important role in the donor’s compliance with the agreement. Specifically, the donor’s spouse/partner is instrumental in compliance with provisions regarding sexual activity, confidentiality and future contact.
