For those who seek to use known donors, or enter into a contract with a known donor, please tread with caution, and see an attorney licensed in your state, before becoming pregnant. It is vitally important that any woman who seeks to become pregnant via donor insemination understands the laws governing donor insemination in her state, prior to becoming pregnant. Known donor contracts are almost always unenforceable, particularly in cases where the insemination is not being performed by a licensed physician. Is saving a few hundred bucks in terms of the cost of donor sperm from a reputable sperm bank worth $20,000 or more in future legal bills and untold heartache?
Northwest Andrology is not paying me to write this analysis and I am not scaremongering so as to drum up business for Northwest Andrology; I write it because despite my repetitive postings on the subject on Northwest Andrology’s web-board, I continue to read discussions pertaining to the use of known donors, private arrangements, known donor "contracts," and the like. As a family law practitioner who deals, on a daily basis, with angry parents trying to take their children away from the other, I cannot stand idly by while idealistic and hopeful young women set themselves up for years of litigation, heartache, and possible loss of their children to "donors" who may some day have a change of heart and who may some day seek to exercise parental rights.
I practice family law in Wisconsin, and can only comment on Wisconsin law. That being said, courts almost never uphold known donor agreements that purport to contract away the donor’s rights and obligations; they are almost always legal nullities. Every state in the United States (as well as Puerto Rico and the District of Columbia) holds that the best interest of the child is the paramount concern, that children have a fundamental constitutional and natural right to familial association with their parents, and that parents cannot contract away the rights of their children at whim. Here in Wisconsin, we have a very lengthy history that children are people, not chattels. Statute and case law pertaining to children is what governs; contract law is inapplicable and contract principles cannot be used to terminate a biological parent’s rights.
Wisconsin, for example, does have a statute that says that if a man gives his sperm to a licensed physician for insemination in a woman other than his wife, that man has no liability for support and no parental rights. Thus, in my state, only if a licensed physician performs or supervises the insemination are the parties safe from paternity, custody, visitation and placement litigation. If there is a private donation agreement and the insemination is performed in some manner other than by or under the supervision of a licensed physician, the "contract" is worth no more than the paper it is written on, and the mother has opened herself up to paternity, custody, and visitation litigation, while the donor has opened himself up to a child support obligation.
Moreover, I would assert that even if a physician performs or supervises an insemination with a known donor in Wisconsin, if the Wisconsin statute was challenged by a "known donor" who had a change of heart and wanted to establish paternity and periods of placement with the child (such a case has not yet been reported in any published Wisconsin decision), courts would look for some reason to make this statute inapplicable under these circumstances, because there is a presumption that establishing paternity is in the child’s best interests. Colorado has already determined that regardless of the plain language of its statute that denies sperm donors parental rights, the statute is inapplicable to cases of a known donor, and it is quite possible that other states with laws similar to Colorado’s may well follow suit.
You really do not know what you’re getting into with a known donor. You do not know his psychological makeup. Individuals with narcissistic personality disorder, for example, can charm the pants off of you and then turn around and stalk you for years; they are extremely adept at "playing normal" to get what they want. Theoretically, a "donor" could be intending from the outset to deceive the "donee," use her as unwitting surrogate, and take her to court once her child is born. A known donor could actually be, or become, a stalker, and the recipient of his "donation" could be facing 18 years of fear and harassment and intimidation if she does not capitulate to future demands he might make. If a "known donor" has the financial resources to out-litigate a biological mother, she could, in a few years time, find her child living with the known donor and find herself with only limited visitation with her own child. And even if the donor is a decent and honorable person who has the best of intentions at the outset, the donor could have a change of heart in a few years and decide that he wants to exercise placement rights. Or consider another scenario: the mother is hospitalized after the birth of the child with postpartum depression, and the known donor requests placement of the baby while she recuperates. It is quite improbable that a court would then turn around and deny the donor his parental rights at a later date.
Not only is the recipient of a known donor opening herself up to litigation from the donor, she is also opening herself up to litigation from his family members. Ever heard of grandparent visitation laws? Contrary to popular myth, the United States Supreme Court has not invalidated grandparent visitation. Rather, in the Troxel v. Granville case, Washington’s third-party visitation statute was struck down as unconstitutional because it was "breathtakingly broad" in that "any person" could obtain visitation if it was in the "child’s best interests." Grandparent visitation is alive and well, and if you find yourself on the recipient end of a paternity action, the next step could be grandparent visitation.
If you are considering using a friend or acquaintance as a donor, please stop and pause for a while, and consider the thousands of formerly married couples who embroil themselves in custody battles each year in this nation. Surely, at one point each person involved in such a custody battle thought he or she "knew" his or her spouse and thought "Janie (or John) would never do that to me." If people who once loved and cherished one another have no qualms about suing and putting the other through the stress, financial hardship, and heartache of custody litigation, consider how easy it would be for people who did not once have this bond to duke it out in court.
Following are two quotes from a Wisconsin case (involving the voluntary termination of parental rights of a father in a situation in which he and the mother had jointly agreed to terminate his rights, but the Court of Appeals would not let
him) to give you a flavor of what is in store for you if your known donor ever decides that he wants to share physical placement with your child:
"Parental rights may not be terminated merely to advance the parents' convenience and interests, either emotional or financial." "Simply put, no parent may blithely walk away from his or her parental responsibilities."
In Interest of A.B., 151 Wis.2d 312, 322, 444 N.W.2d 415, 419 (Wis. App.1989).
In that case, both the father and the mother sought to terminate the father’s rights to the child. There was no dispute between them. However, the court decided that it was not in the child’s best interests to deny the child a relationship with the father, and thus forced an unwanted family relationship upon two unwilling adults. This case has never been overturned, and because it is a published appellate decision, it is binding on all lower courts in the State of Wisconsin (including the Court of Appeals which cannot reverse its prior decisions; that is within the sole domain of the Wisconsin Supreme Court), until such time as the Wisconsin Supreme Court overturns it (and it won't; the State has no interest in making legal orphans of children; its interest is in ensuring that children have a continuing legal relationship with their biological parents, whenever possible). In light of this decision, I think that it is all the more probable that if a known donor wanted to establish paternity and obtain custody and visitation, the courts would allow him to do so, notwithstanding any prior agreement between the donor and the mother.
We have all heard of the "Baby M" surrogacy case, where despite the existence of a lengthy and well-written surrogacy contract, the parental rights of Mary Beth Whitehead to her biological child, Baby M, were affirmed. My conclusion is that almost all courts will consider private contracts involving known donors, particularly those in which the insemination is performed outside of a physician’s office, to be similarly unenforceable; parents cannot terminate their parental rights by contract.
In Wisconsin, for example, the presumption that biology trumps all is so strong that even a parent who murders the other is allowed custody and placement if it is determined by "clear and convincing evidence" that it is in the child’s best interest to do so. If a known donor is not a murderer but is simply a jerk who lied about his intentions from the outset, or even began with the best of intentions but later changed his mind, a court is all the more likely to establish paternity, and grant joint legal custody the donor, as well as award visitation or placement.
Furthermore, please also consider that if you ever apply for public assistance of any sort, be it CHIP health care, food stamps, AFDC, or the like, you are required to identify the father of your child. There are, of course, "good cause" exceptions, but since the state has a parens patrie interest in making sure that children do not grow up in poverty, and since the state also has a financial interest in recouping, from the father, the moneys it expends on behalf of children who benefit from public welfare programs, it is most probable that the use of a "known donor" is not going to be considered a "good cause" exception in any state where a court of competent jurisdiction must make that call. You may conclude that this warning is not applicable to you because you have a stable job now, but nobody knows what the future may hold, and at some time, you may find yourself compelled by circumstances entirely beyond your control to seek some form of public assistance.
One of the best resources on the subject of donor insemination law is the Human Rights Campaign’s donor insemination law page, located here:
Human Rights Campaign Foundation
However, I do disagree with the Human Rights Campaign’s bald assertion that in Wisconsin, "a known donor releases himself from legal responsibility if the procedure is performed with a physician's involvement." That may be a synopsis of the language of Wisconsin’s statute, but no published decisions have addressed its applicability to situations involving known donors. Wisconsin’s donor insemination statute was written at a time where sperm donors were anonymous and physicians performed donor insemination only on married women whose husbands were infertile, prior to the days of open lesbian relationships and prior to the societal change whereby single motherhood became an acceptable choice. In light of Colorado’s judicial determination that such a statute was inapplicable to a situation involving a known donor, and in light of the nation-wide presumption that paternity adjudication is in a child's best interests, I would recommend treading carefully in Wisconsin (and all other states), and would recommend proceeding with the assumption that should a Wisconsin (or other) court ever have to address the issue, the statute could likely be held inapplicable to known donors, particularly if the mother had initially permitted the donor to have some contact with the child.
Even if a court were to find that statutory prohibitions against donors obtaining parental rights were applicable to both anonymous and known donors as a general rule, in the case where the mother had initially permitted the donor to have contact with the child, a court could quite easily find that there had been an "implied waiver" by the mother of the statutory legal protections. "Waiver" is "the voluntary renunciation, abandonment,or surrender of some claim, right, or privilege." Waiver "can either be in written form or can be implied by some form of action." If the recipient mother allows the donor to have some sort of contact, a court may find that by her action, she has implicitly waived her statutory protections.
I do acknowledge that there have been Oregon cases upholding the validity of "known donor" agreements, but those appear to be fact-specific and since I am not licensed in Oregon I cannot comment on the general applicability of those decisions to other Oregon cases. I also acknowledge that there are California cases that have gone both ways with respect to "known donor" agreements. While I do have an opinion as to the meaning and applicability of these decisions, because I am not licensed in California I will not offer an opinion on that subject.
We all want what is best for our children. We want our children to have relationships with other people. Many of us would like our DI children to be able to know their biological roots. But is the potential litigation worth it? Family law cases are heartbreaking, painful, stressful, and just plain awful for the adults involved– think of how much worse it is for the child. Do you really want to risk putting your child through years of litigation? If it is fundamentally important to you that your child be able to know his or her biological background some day, including the identity of the donor, consider using a donor, screened and tested by a sperm bank, who has agreed to allow his identity to be released at the child’s request, upon reaching the age of majority.
Andrea L. Olmanson, Attorney |
