You and your spouse are looking for help conceiving a child to grow your family. You’ve decided to work someone you know, rather than an anonymous sperm donor. Maybe you are a same-sex couple working with a long-time family friend, or maybe your reproductive choices are medically limited, but you still want the genes to come from within the family. Either way, you could need a known donor agreement to secure your rights and protect your donor.
What is a Known Donor Agreement?
A Known Donor Agreement (sometimes also called a sperm donor contract) is an agreement between a biological mother who wants to conceive a child and an individual who has volunteered to donate genetic material for the conception. It can cover straight-forward home-based conception kits or elaborate In-Vitro Fertilization (IVF) procedures.
Generally speaking, a Known Donor Agreement says that even though everyone know a child conceived under the agreement is biologically related to the donor, no one wants the donor to be recognized as the father of the child. The donor father agrees to give up any claim for custody or parenting time and may also in some cases promise to consent to a later adoption. In exchange, the mother agrees not to file a claim for child support against the donor. (However, in some cases, the state may file a complaint for child support against the donor to recoup welfare costs if a mother is receiving public assistance.) This contract can serve as a shield for both mother and donor, when circumstances or relationships change after the child is born.
Known Donor Agreements are Not Surrogacy Agreements
Before we jump too far into the details about known donor agreements, it’s important to note that in this case, biology matters. Michigan law is currently very out-dated when it comes to alternative reproductive technologies. While the law allows for known donor agreements as described here, the laws for surrogacy contracts are different.
Surrogacy cases are where a woman wants to donate her womb to assist another person or couple in having a baby. Michigan law only allows uncompensated surrogacy arrangements. Even then, the contracts documenting how the surrogacy and subsequent adoption will take place are unenforceable. That means that if the surrogate mother changes her mind after having the child, the courts will not force her to give the child up to the intended parents.
Why You Need a Known Donor Agreement to Protect Your Rights
In most cases, a known donor is either a member of the family or a close friend. Some lesbian couples will pair up with their friends who are gay to help both families conceive. But with such close connections, you may wonder why you need a known donor agreement at all.
The short answer is that time and circumstances can sometimes turn even the best of friends against each other. If an unexpected job opportunity causes the family to move away from the donor, or a mother falls on hard times, it can be tempting to turn to the family court for options. When that happens, a known donor agreements protects your rights, and enforces the agreement you had before the child was conceived.
Protecting Families from Revocation of Paternity Cases
The biggest risk when a family chooses to use a known sperm donor to conceive a child comes from the Revocation of Paternity Act. This law allows a families to correct a child’s legal parentage when a biological father is not the second parent listed on a child’s birth certificate. It allows for the mother, presumed father (the person married to the mother), or biological father to file a complaint with the family court to replace the legal parent with the biological father.
For families using a known donor, if a biological father changes his mind within the Revocation of Paternity Act’s three-year window, he can file a complaint and sometimes disrupt the family entirely by establishing that he contributed DNA at the time of conception. However, the statute also requires that a biological father cannot “know or have reason to know” that the mother was married at the time the child was conceived.
In some cases, this comes down to testimony about wedding rings and pictures on the nightstand. But when there is a known donor agreement, the biological father signs that he knows the mother is married, and that the woman’s spouse is the intended parent of the child. This provides a strong defense against Revocation of Paternity cases that could gum up a happy family situation.
Protecting Known Donors from Child Support Cases
On the other side, possible sperm donors are often nervous to help with conception out of fear that they will be on the hook for child support for the next 18 years. And sometimes they are right. A known donor agreement can protect a sperm donor biological father from claims filed by the mother. However, when the state gets involved, things get a little more tricky.
Michigan law is set up so that a child can have up to two legal parents. When a child conceived with help of a sperm donor is born into a marriage, a special IVF statute says that the “husband” of the mother that gives birth to the child is assumed to be the “father” of that child. Most Michigan family law judges are giving same-sex couples the same protections, naming the mother’s wife the legal parent of the child conceived through IVF. A known donor contract can help cement these relationships. It says that the mother’s spouse is intended to be the parent of the child, with all the rights and responsibilities that come along with that. The contract also says that the mother will not file a child support claim against the biological father, which further protects him from ongoing support obligations.
However, when a single parent goes on public assistance, including Medicaid or WIC, and receives welfare benefits for his or her child, then the county prosecutor’s office is entitled to file a child support complaint on behalf of the parent to collect child support from the child’s other parent and pay back the state. A known donor agreement cannot protect against this kind of case. That’s why they are best used in cases with married couples where one or both of the intended parents has stable employment.
Is a Known-Donor Agreement Enough for Same-Sex Couples
One of the most common questions I get given my focus on LGBT family law is whether a known-donor agreement is enough to protect the rights of same-sex couples. This is a tricky question. Since the U.S. Supreme Court decision in Obergefell v Hodges, same-sex couples have been allowed to marry and have families together. The language in Obergefell suggests that the states may not hinge parental rights on a parent’s biology. A second U.S. Supreme Court case, Pavan v Smith, says that a mother’s wife has just the same rights to be listed on a child’s birth certificate as a mother’s husband.
However, for some mobile same-sex families, a known-donor agreement may not be enough on its own. That is because the U.S. Constitution only requires other states to recognize marriages, judgments, and court orders entered into in another state. (This is called “Full Faith and Credit“). It does not require them to apply the same assumptions about parentage. If you and your wife think you may be moving out of state, it may be worth filing a Joint Complaint for Parentage Determination before you make the move. You can then use your known donor agreement and your marriage license to prove the non-biological mother was the intended parent of the child, and get a court order saying she is entitled to all the same rights and obligations as the mother who carried the child to term.
You may also have heard that you can use a Step-Parent Adoption to secure the non-biological parent’s rights to the child. However, depending on your judge, if a child was born during your marriage, your family may not qualify for an adoption. In that case, the parentage determination is your best bet.
A known donor agreement is an important first step to protecting the rights of donors, parents, and children conceived through alternative reproductive technology. But it may not always be enough. Be sure to talk to an experienced family law attorney before you begin working to conceive to make sure all the I’s are dotted and T’s are crossed, so that your family is protected down the road.
Lisa J. Schmidt is a family law attorney at Schmidt & Long, PLLC, in Ferndale, Michigan. She has a special focus on LGBT family law issues. If you are a same-sex couple considering alternative reproductive technology, contact Schmidt & Long today to schedule a consultation.