By KARRI BERTRAND
and
VICTORIA JONES
Specal Contributors
Mamas and mamas-to-be looking for a sperm donor to start or add to your family: We understand there can be warm fuzzies surrounding the appeal of a known donor. Maybe he’s your best friend. Maybe you’ve known each other since childhood. Maybe you want to avoid choosing half of your child’s DNA based on a few paragraphs in an anonymous profile.
The idea of using someone you’ve met and spoken to may seem beautiful, safe or even less expensive.
While each of your reasons for choosing a known donor may be understandable, let us strongly caution you: Without the proper legal steps, that “donor” may not be a “donor” at all but could instead be considered a legal parent to your child — one who could put the rights of you and your partner at risk.
In Texas, the term “donor” has a very specific legal definition that requires the sperm be provided to a licensed physician, including those working for cryobanks, for use in assisted reproduction.
When insemination happens informally at home, without the use of sperm from a cryobank or the assistance of a doctor, the law may treat that man not as a donor but as a legal father to the child — a legal father who could demand genetic testing and seek custody or visitation.
You should not rely on good intentions to override state parentage laws, as the legal battles that may follow could end up costing you more than your future child’s college savings and then some.
A written agreement with the potential donor is often not enough to prevent that person from coming back months or years later to assert parental rights. You may find yourself unexpectedly forced to co-parent with a person who was never intended to be a parent at all.
Worse, if you are the parent who did not give birth, you may find that you no longer have legal rights to your child at all.
And this risk goes beyond a known donor asserting parental rights. The parent who did not give birth may also face serious legal complications if the statutory requirements are not met, even if both partners are listed on the birth certificate. If something were to happen to the birth mother, the surviving parent could be forced to defend her rights to her own child in court while still grieving this loss.
That is not a battle anyone should ever have to fight.
Perhaps you think that this wouldn’t happen to you. You know the donor well. You trust the known donor. You have an understanding.
But circumstances change, relationships shift, and external pressures from family, friends, new partners and changing finances can lead to messy situations. Most people who end up in court think, “We never thought it would come to this.”
Good intentions are important, but they are never a substitute for ensuring that your future, your partner’s future and your child’s future are legally secure.
So how can you protect your family? What do you do if you’ve already used a known sperm donor, and you are pregnant or have already had a child? The good thing is that there is still hope.
If you have already had a child using a known sperm donor, one of the best things that you can do is to complete a second parent adoption — a process where the parent who did not carry the child legally adopts their own child to secure their parental rights through a court order. As part of that process, the known donor’s rights are typically also addressed, usually through a formal waiver in which he tells the court that he is not seeking any legal claim to the child.
This process should ideally be done as soon as possible after birth, but even if several years have passed, it is still worth pursuing. Even if you used an anonymous sperm donor through a cryobank, completing a second parent adoption will provide significantly greater security for the rights of both parents.
If you haven’t yet gone forward with the insemination, you should take the time to consult with an attorney. Using an anonymous donor who has been vetted through a doctor’s office or cryobank can go a long way towards protecting your family.
But if you are determined to use a known donor, you will want to ensure that the proper legal process is followed and that it is legally clear who the parents of the child will be before you begin the process.
We have defended against this issue many times in court and have seen firsthand how devastating it can be when the proper legal groundwork isn’t laid, and families are financially drained or even torn apart through parentage disputes. Your family deserves those warm fuzzies, but make sure you protect your family’s future at the same time.
Karri Bertrand and Victoria Jones are attorneys with the Dallas firm KB Family Law. Contact them by phone at 214-851-8655 or visit their website at KBFamily.law.