Can Using a Known Sperm Donor Affect Second-Parent Adoption?

Q:

Will there be any problems with our second parent adoption if we are inseminating at home with known donor sperm? We have detailed contracts spelling out responsibilities and expectations with my partner and I and the donor.

Someone suggested there could be a problem, legally if a facility/physician is not involved with our conception.

Thanks,
Sandi

A:

By Evita Nancy Torre, Esq.

In order to outline the rights and responsibilities between the biological mother and the sperm donor, a sperm donor agreement is necessary. This contract will spell out the intentions of all parties regarding the donation and the child conceived.

Legal issues may arise when one party desires to play a larger role in the life of the child, even if this contradicts the initial agreement. The donor may want visitation rights, or even custody, or the biological mother may request child support. If the insemination is done by a licensed physician and there is no involvement in the child’s life by the donor, sperm donor agreements are enforceable in some states. However, sperm donor agreements (regardless of involvement of a physician) are not enforceable in New York.

During a second-parent adoption in New York, the court will ask for the biological “genesis” of the baby, i.e. sperm bank or known donor. If you used a sperm bank, a letter from the sperm bank regarding the alternative insemination will likely suffice and no further information regarding the donor will be requested. However, if you used a known donor, you likely will be obligated to identify him. Since the court will regard the donor as the legal father, his paternal parental rights will have to be terminated — or he will have to surrender his rights or consent to the adoption — in order for the second-parent to adopt.

Although a known donor may have consented in the known donor agreement to surrender rights or consent to the adoption, he may change his mind. Since the agreement is not binding in New York, the court is not obligated to enforce it. The court may look to the contract for guidance as to the intent of the parties while the court determines the best interests of the child. (In New York, the use of a physician is not dispositive, but, similar to the agreement itself, can help strengthen the court’s understanding of the parties’ intent.)

If you choose to use a known donor via a known donor agreement, it is important that the agreement is clearly written, addresses possible scenarios and changes in circumstances, and that both parties attest to understanding the content and the consequences of the agreement. Since the court may review the document, it is advisable to construct the document under the advice of an attorney. Additionally, an experienced attorney can assist you in including statements specific to your family’s personal needs and desires. A well-drafted agreement can also help remind all parties of their respective wishes and wishes for the child.

Evita Nancy Torre is an adoption attorney with Greenberg Adoption in New York City. The firm’s founder, Cliff Greenberg, is the resident legal expert at The Center, and recently published a children’s book about a girl’s adoption by two loving mothers, “Living the Dream with Mommy and Mama.” Evita and Cliff host The Center’s monthly Family Law Clinic, and exclusively practice adoption law (public agency, private agency, second-parent, sperm donor agreements, co-parenting agreements) in Chelsea.

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3 Comments

  1. Jess Woodrum says:

    My partner, Addison, and I are planning our future and wrestling with the very same concerns. We’d like to use a known donor, but we’re scared of the legal uncertainties.

    We live in Colorado, a state that has a second parent adoption law and that has upheld sperm donor agreements in the past (according to this site).

    If the donor commits in the agreement to terminate his legal rights so that my partner and I can go through second parent adoption — can the agreement be upheld and require termination of his rights?

    Our biggest fear is that we will use a known donor who agrees to terminate his rights — and that the donor will change his mind once our child is born. I’m hoping that a sperm donor agreement will help protect against this, even if it isn’t iron-clad.

    Any advice or knowledge you can offer as we think through all the options? We’d appreciate it!

    Reply
  2. PDXsmc says:

    States differ, but federal law treats sperm handled by a sperm bank as “banked tissue” and the donor is relieved of all rights and responsibilities. It is absolutely the best way to sever your donor’s parental rights. As a “directed donor,” he goes to the bank, they treat him like all the others, the testing, the paperwork, but only you get their sperm. He doesn’t go in the catalog.

    The downsides are that it costs money, the sperm has to be quarantined for six months before you can use it, so he can be tested for HIV, insemination is complicated, and many men’s sperm doesn’t survive freeze/thaw. An upside to freezing is that it makes the process much less demanding on your donor.

    My donor flunked the freeze test, so we had to create a long, complicated donor agreement, which, in our state, serves only to indicate our intentions if we ever find ourselves in family court. The wrong judge, in the wrong state, can really mess you up. They can choose to totally disregard the idea of father versus donor, and award visitation/custody/support. It’s pretty scary. Know your donor well.

    Reply
  3. Njv23 says:

    Please be very careful with a known donor. We knew our donor for 12 years, my partner and I have been together 9 years. We tried for three years and once we became pregnant things were great. We all understood our roles and agreed how things would be. Three weeks before our son was born our donor changed his mind. He decided he wanted to be father and have 50% custody. We have been in a legal battle for the last 5 months. We live in California and we are hoping that our agreements stand. Please be very careful.

    Reply

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