Lesbian couples who want to have children together can use donor sperm to get pregnant. The trouble is that many couples make a variety of mistakes that end up complicating the issue of child custody and parental rights, resulting in undesirable outcomes, such as the donor successfully suing for visitation rights. Here are three common mistakes couples make when using donor sperm and how to avoid them.
Failing to Follow the Law
One of the most common mistakes couples make when using donor sperm is failing to follow state law. This isn't much of an issue when using sperm donated to a sperm bank, because all states automatically terminate donors' parental rights when they make their deposits. However, the law isn't so decisive when it comes to sperm from known donors.
In fact, most states are against terminating parental rights for known donors—even when there is a contract—feeling that doing so is against public policy and not in the best interests of the child. In some states, termination of the donor's parental rights will only occur in situations where the artificial insemination was performed by a medical professional or at a licensed facility; otherwise, the donor will be considered the legal parent of the child and retain his parental rights and responsibilities.
For instance, in New Jersey, a lesbian couple was forced to let the donor have visitation rights to the child he fathered because they performed the procedure at home and not in a medical facility with a physician, as required by law. To avoid a situation like this, it's critical to research the laws in your state and follow them to the letter.
Drawing Up Your Own Donor Contract
Another mistake couples make when using donor sperm from known providers is crafting their own donor contracts. Even though courts have been known to ignore donor contracts when the issue of paternity and associated parental responsibilities comes up, it's critical to have one on file for a variety of reasons.
Some courts will take what is said in the contract into account when deciding whether to uphold a donor's rights. In some states, having the contract will be necessary to prove the intent to have children together during the marriage to establish the right to custody and visitation of the kids when the couple separates.
However, to reduce the risk of the contract being dismissed out of hand because it contains illegalities or problematic clauses, have the contract drawn up by an attorney who is well versed in family law. Trying to develop your own contract or using something downloaded from the internet isn't a good idea, as you may miss important issues (e.g., contact with the child after birth), or the template you obtain may be designed to be used in another state.
Letting the Donor Take Part in the Child's Life
A third mistake some couples make is letting the donor be part of the child's life. This happens most often in cases where the donor is known, but it has also happened in cases where anonymous sperm donors have tracked down their kids and wanted to be part of their lives.
It's understandable to want a child to get to know all the people involved in his or her birth, especially if the donor is a relative or good family friend. However, letting the person have anything more than passing contact with the child can open the door to family law issues down the road. Even if you have a donor contract in place, the court may consider the fact that the donor is contributing to the child's upbringing in some way as proof he wants to parent and restore his rights.
You need to be upfront with the donor that you don't want him to take any sort of parental role in the child's life and stick to that decision. If necessary, move away from the donor or take additional action (e.g., formal adoption) to keep him from trying to establish a legal relationship with your kids.
For more information about or help with these issues, contact a family law attorney at a law firm such as Ivy Law Group PLLC.