Is a donor agreement enough to protect my same-sex partner from a challenge to her parental rights?

Usually not. In California, maybe.

In short, we recommend a second parent adoption or a ‘Paternity’ action to terminate the parental rights of the (known) donor ‘father’ and establish the non carrying spouse as the second parent in the eyes of the law.

But why?

The law is unsettled, especially with the passage of new legislation that allows for more than two legal parents of a child. Artificial insemination can be the key to building a family, especially for same-sex couples, and choosing a donor whom you know and love is certainly a viable option. There are several concerns that we see on a regular basis:

What happens if the donor decides he wants parentage rights over our child?
What if my partner leaves me and seeks to deny my parentage by seeking to establish our donor has the lawful parent?
What if the donor dies — will his family have visitation rights over our child?
If I let the donor visit with our child, will he have legal rights over her/him?

The process of reaching a full agreement, putting it in writing, complying with the requirements set forth in the California Family Code (e.g. supervised by a physician), and signing — assures that the donor and recipient have the same parentage intentions. We find that most people honor this agreement and very few (if any) issues arise.

However, the court is not always obligated to follow the intentions of the parties as defined in the agreement. If a situation arises in the future, the court has to decide between each of the competing people to determine who should be the lawful parent. Case law has dealt with only two parents but California has a new law that could potentially allow for more than 2 parents! While we do not know how the court will apply new law, we strongly believe that court’s will find donor agreements very persuasive — especially when the contract clearly indicates that the donor will have no parental rights or responsibilities for the child.

To be completely safe, intended parents should strongly consider a second parent adoption or a parentage action to establish parental rights and terminate the parental rights of your donor. This doesn’t mean your donor has to be excluded from your child’s life, it only means that he will not be considered a parent under the law. A judgment of parentage will not only protect you and your family in case of a challenge to parental rights– but it will confirm your legal rights and obligations as a parent to everyone, every state and every country you travel through or to.

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