Protecting one’s family is something that you need to do before a pregnancy is even conceived when third party reproduction is involved. It is more than just taking folic acid supplements, exercising and eating a healthy diet in preparation for conception. In fact, it is truly so much more when a third party is involved. Singles, heterosexual couples and lesbian couples have been using the help of sperm donors in creating their families for many, many years; yet to be sure, it is not as simple as asking a male friend to donate or reviewing a catalogue of available unknown donors. In fact, it is and needs to be so much more right from the start.
The decision to use sperm donation as a family building option actually begins when you make the decision whether to use a known donor or an anonymous, unknown donor located through a sperm bank. Each option has its pros and cons; however, as a family, you must decide what works best for you, as well as your future child.
For example, using a family friend or the sibling of a lesbian partner is a wonderful way to know and understand your child’s history, as they can provide your child a background to his/her health, as well as their ancestry; however, he can also later step in and challenge one and/or both of your parental rights in certain states. This is especially true where the donor decides that he wants to be a part of the child’s life due to certain decisions he himself has made in his own life.
On the other hand, an unknown donor can likely provide you and any partner the protection of not being identifiable. In fact, because of the differing laws in each particular state, using an unknown/anonymous donor may be the best way to ensure that an unidentified and unidentifiable man could not threaten the parental rights of your child, which is why many resort to this option.
Yet, although an unknown donor can provide you and your family much needed security and autonomy, it can also prevent your child from contacting their genetic provider in the future if he/she wishes to make contact or if there is a medical need. We are now actually seeing such a case being played out in the courts (and the media) in Boston where a single mother is suing her sperm bank for the identity of her children’s sperm donor. She not only wants access to the donor’s information for medical reasons, she also wants to sue him for child support once he is identified.
Although I am certain the support issue will never likely be granted, or even considered, despite her financial situation, the medical aspect surrounding one’s medical history is something that cannot and should not be ignored. In fact, statistically most donors are unaware of any genetic issues at the time of their donation due to their age. And, if any medical issues arise, how is he going to be able to contact you or your children so that you can know in advance before it is too late? What if your child has a medical need that merits contacting your sperm donor?
Thankfully, the industry is moving toward open identity donations, which permits contact between the parties via an intermediary if a need arises or at the time that the child reaches majority. However, this option, along with the Donor Sibling Registry (http://www.donorsiblingregistry.com), is only starting to help alleviate some of these issues until real change is made in the industry.
Ultimately, as Dr. Susan Treiser stated in her AFA blog post back in November of this year and as Corey Whelan discussed in her piece in the Examiner, medical clinics and sperm banks can serve as a guide, but their advice and education does not equate with necessary legal guidance at the very beginning. It is important for the parties, including the couples involved, to meet with an attorney so that they can ensure that they put their intent and understandings in writing before the insemination process is actually done. Why, you ask? Because as I have heard before, love may make a family, but the law can tear it apart in ways we never intended.
One other important reason for ensuring that a valid legal agreement exists is because there is no uniformity amongst the States regarding sperm donation, especially if a known sperm donor is used. Does your state require a physician to be involved? Are home inseminations permitted? Do single and lesbian women have the same rights as a married woman in their state of residence? What if your known donor has an ongoing relationship with your child? Can that affect your parental rights? Can a known donor preclude recognition of a lesbian co-mother if a court is determined to recognize only two parents or only a mother and a father?
Creating a child can also places people in a position that can both be legally challenged or legally enforced in ways not expected. For example, what happens when two lesbians use artificial insemination to create a child, and the women decide to separate or divorce? Who gets the child, or who pays support? Well, there are not clear answers in so many ways for anyone.
And, in the instance of a lesbian couple co-parenting with a known donor, what is most important is that you obtain independent counsel that completely understands the legal landscape that you are facing, as well as ensure that co-parenting legal family agreements are in place regarding parental involvement, living arrangements, finances, visitation, childcare, child rearing expectations, and a multitude of other issues affecting their child or children together, including mediation provisions.
As they say, prevention is the best medicine, which is why obtaining legal counsel will be the first step in the right direction as a parent before your child is even conceived. Make certain you locate competent legal counsel who is experienced in this area and can address your intentions, as well as the requirements of your state of residence. The most important thing that you can do for your child now before he/she is conceived is to draft an agreement that will ensure that all of the parties are protected – you, your partner (if any), your known or unknown donor, and ultimately, your child.