Beware of the Known Donor in States Like California: Do Not Rely on Your Clinic’s Recommendations
Many couples have non-traditional reproductive options. Whether they are both the same sex or one or both persons are not fertile, many couples are left with limited choices. They can adopt, but with the ever-decreasing number of adoptions each year, this is becoming a more expensive and less attainable choice over time. They may choose to foster; however, this can be a complicated and challenging process that not all couples feel ready to take on in their lives. If a female member of the couple is fertile, many couples are left wondering then, who should we use as the sperm donor?
Clients of a skilled Alameda County adoption attorney often initially want to turn to either a close friend that they have known for many years and always admired, or a family member that seems like the closest genetic match to being able to have a child of your own. From an emotional perspective, these choices may seem appropriate. From a legal standpoint, it is important to understand, if you use a known donor, there will always be the possibility that the donor will be able to gain rights as a parent.
This comes as a surprise to many couples who have received counseling and contracts provided by well-known and respected fertility centers which state the donor is waiving all rights to a be a parent of any kind. These contracts are often accompanied by a counseling session where the donor speaks with a counselor and then agrees that they will never have any rights as a parent. The intended parents then also sign the contract stating that will have no rights to sue for child support or take any action against the donor. These contracts usually have Family Code § 7613 abbreviated on the page as follows: “a donor is not a parent if the sperm is provided by a licensed physician and surgeon or to a licensed sperm bank.” This leaves parents with the impression that donor is not a legal parent because they have complied with the statute.
This impression is incorrect, however, because compliance with the donor statute does not protect the parents from a claim for custody from the donor if they donor forms a bond with the child. The donor can bring a claim for custody under Family Code § 7611 claim which allows a person, who is not the legal parent to establish paternity if they “receives the child into his or her home and openly holds out the child as his or her natural child.”
I have seen this standard very loosely applied to allow donor who had only casual contact with the child to gain full custody of a young child. Parents need to be very careful never to allow a donor to acknowledge the child as their own, even if joking, and to not let friends or family refer to the donor as a parent. Keeping the child away from the donor, especially while they are young, is of critical importance. If the donor is a close friend or relative, this may be impossible.
In sum, if you want to have a child that is truly your own, do not use a known donor in states like California.
Thanks to our friends and contributors from Summerall Law for their insight into known donors in California.