What You Need In Writing Before Using A Donor
Known Donor Agreements in New York: What to Put in Writing
Families looking to conceive a child using a known sperm donor need to have clear expectations about the parenting rights of the intended child. Whether you are using a known donor or conceiving with a nonidentified donor, it is highly recommended that you have your paperwork in order pre-conception to reduce uncertainty and create a strong foundation for building your family.
Who are the Parties to a Donation?
While some intended parents may be excited about the prospect of using a donor, other intended parents may feel scared or have difficult feelings about the need to turn to a donor to grow their family—including parents who have conditions related to low sperm count, diminished ovarian reserve, endometriosis, a risk of passing on a genetic condition to a future child, or any number of other medical hurdles. Whatever your reason for turning to donor conception, there is absolutely no shame in choosing this path. At Expand Law, we believe it is important that you work with professionals that honor your unique experience and prepare you for the legal framework involved in this decision.
Intended parents are the parents who are intended to parent the child, including providing for the child’s care, making medical and educational decisions for the child, and ensuring that the financial needs of raising the child are taken care of.
A known or directed donor is a person, typically an extended family member, friend, or community member, donating gametes (sperm or eggs) or embryos (including the possibility of a double donation, which is a donation of both egg and sperm) for the conception of the child. An anonymous or nonidentified donor typically refers to the use of sperm or egg donation through an agency, sperm bank, or cryobank—and under this structure, the organization routinely requires donors to sign waivers before accepting a donation. Even if your known donor will be involved in the life of the child, it is very important for a known donor to sign a Donor Agreement explaining that they understand they are waiving any legal parental claim, as it is impossible to know what situations may arise in the future. For this reason, verbal or “handshake” agreements, even with a loved one, could be risky.
Before you work with a clinic or bank in New York, it is important to have a legal clearance letter from an attorney, which confirms that both the intended parents and the known donor have received independent legal counsel and have a signed Donor Agreement in place. The paperwork you may sign with a clinic, bank or agency is typically insufficient or wholly unrelated to your family’s parenting journey and it is not enough to establish parentage.
What is a Donor Agreement?
A Donor Agreement is a legal document that identifies the intended parents of any child that may result from the donation and the rights and responsibilities of the intended parents and the donor. It should always establish intent-based parentage, or that the intended parents are the legal parents of the child—especially as, in some states or circumstances, the default law may consider the donor to be the “legal” parent of the child because of the genetic link. It should also clearly establish the donor’s donative intent to provide genetic material for the intended parents, and state that the donor does not intend to have any claim to parenthood for the intended child.
It is imperative that the donor agreement includes certain statements, including:
· a relinquishment of parental rights from the donor (including residence/custody, visitation, and decision-making authority);
· an assumption of parental rights from the intended parents;
· intentions for how to handle any unused embryos or genetic material, if applicable;
· statements related to privacy and confidentiality, which deal with how future contact may be handled and how much identifying information is shared with the child, and at what age; and
· statements identifying the financial terms of the donation, reimbursement of medical expenses and legal fees, as well as releasing the donor from any potential child support obligation.
The donor agreement should also require the donor to provide a complete medical history and undergo health and fertility screening, including STI testing and genetic carrier testing. It should also include a commitment from the donor to inform the intended parents of any significant changes in their health status that could affect the child.
Finally, the donor agreement should have a section covering dispute resolution, or how disagreements will be resolved. This may include an obligation to go through mediation before any court action is initiated—a requirement that can save tremendous time, emotional hardship, and resources for everyone involved.
New York’s Legal Requirements for Donor Agreements
In New York, the Child-Parent Security Act, or CPSA, governs donor agreements, including the concept of donative intent discussed above. There are certain aspects of donor agreements that are required so that it is legal, binding, and worth the paper it is printed on. For example, under the CPSA, the following are either required or widely considered to be best practice:
· the donor and intended parents must each have the opportunity to review the agreement with the assistance of independent counsel to establish informed consent;
· the agreement must be executed prior to conception; and
· the agreement should be signed and notarized on behalf of all parties.
These and other factors help signal to a court, if one is ever involved, that the agreement was crafted thoughtfully by parties who planned for future possibilities. To know exactly which requirements apply to your specific situation, reach out to Expand Law or another experienced attorney to ensure your agreement is compliant with applicable law.
What Happens Without a Donor Agreement, and What Happens After One?
Not having a valid donor agreement opens a family to certain legal risks that could be extremely difficult to overcome. For example, without an agreement relating to parentage, it is possible that a known donor could seek visitation or custody rights for the child in the future. On the other side, if an enforceable agreement was not signed, a known donor could be held liable for child support in the event of divorce or death of a parent. Lack of clear parentage of a child could also implicate inheritance or probate issues for the child, donor, or the intended parents.
After your donor agreement is in place and there is a child on the way or born, there are other steps that intended parents should take to protect the family, which may include obtaining a judgment of parentage, adoption, or valid will or codicil. These topics will be explored in future blog posts. It is important that you work with a skilled and experienced attorney to help you navigate these complexities so that you have the peace of mind to enjoy these early stages of life with your child.
Expand Law maintains an active blog which provides general legal information. Under no circumstances shall reviewing this blog constitute legal advice. If you are looking for legal advice specific to your issue, please contact lindsey@expandlawpllc.com for a free consultation.
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