Not everyone can biologically have children. Some couples face infertility, while others are in same-sex relationships. There are also other situations where couples have genetic concerns and would rather use embryo, egg, or sperm donation to grow their family. No matter the reason for turning to assisted reproduction, the same is true for everyone: You simply must have an ironclad agreement in place to properly protect your parental rights.
All too often, the intended parentage of the children resulting from third party reproduction (sperm or egg donation and/or surrogacy) does not match the parentage automatically established by outdated existing parentage laws. We would like to assume the positive intent of the intended parents and the third party donors or surrogates who help them will be sufficient to establish the desired parentage. However, as a number of court cases have shown, this is not always the case, and a donor or a surrogate may decide after a child is born that they do want to be involved in the child’s life. Or, in the case of same sex couples, if there is a break up in the future, the mutual parental rights of both parents can be called into question, especially if one of the parents is not biologically related to the child or parentage is yet to be established.
To make sure parental rights are protected, anyone going the route of assisted reproduction needs to work with an attorney to create an enforceable agreement that clearly establishes the collective intent of the parties and, to the extent possible, terminates the rights of a donor and/or surrogate and establishes and preserves the rights of the intended parents.
Agreements are necessary in all cases
The type of agreement you will have – and language included in the agreement -- is entirely dependent on the type of assisted reproductive technology your family is using and the state you reside in.
Below are some of the more common agreements families have in place:
- Gestational carrier agreement: This will be between you and the surrogate carrying the child. The contract will include a lot of vital information about intent, behavioral limitations, and management of the pregnancy, such as intended parental rights, future contact between the parties and the child, and any reimbursable expenses and/or compensation for services. Creating this contract is also not a one-way street, and each party should ideally be represented by an independent attorney, so be prepared for possible negotiations. If something does not feel right to you, this may be a sign that you and your surrogate do not have the same intent or aspirations for the process or outcome. If this is the case, it is better to discover this during contract negotiations when you can still withdraw from the process and seek an alternative surrogate that better matches your own intent.
- Egg or embryo agreements: If you will be using an egg or embryo donor – even if the donor(s) are known to you – you still need to have a contract in place. It is not uncommon for parties to make assumptions of various aspects of the donation process or ultimate outcome that do not match, and an express written agreement ensures that everyone is on the same page with the same intent. The agreement, though of varying enforceability in various jurisdictions (since parentage law varies from state to state), also provides the best available protection if a donor attempts to break the contract.
- Sperm donor agreement: The last thing anyone wants is for a sperm donor to come back after a child is born and attempt to claim their rights as a father – or for a resulting child to seek inheritance rights against the estate of a deceased donor based on genetic relationship. Even if a friend or family member has agreed – or even volunteered – to be a sperm donor, this does not mean he or the child will not change his mind on what the donor’s relationship should be in the future. Having an agreement in place clearly establishes specific intent, roles, and boundaries and ensures all parties are protected against unintended residual parental or inheritance rights.
- Parentage judgment: The resulting parental presumptions and rights of the various parties definitely vary from state to state. In some states, you will want to make sure to get a parentage judgment, whether pre-birth or post-birth, which clearly states who the child’s legal parents are. This is especially important in same sex relationships in the event you and your partner ever split up or divorce. For same sex couples, this will typically involve a step-parent adoption so that their respective parental rights are recognized and given full force and effect in every state under the full faith and credit clause of the U.S. Constitution.
Creating an agreement gives piece of mind
The bottom line is that we all like to think that everything will work out. However, there have been far too many cases where parental rights are questioned or taken away. This is not said to scare you away from the process, but to arm you with the knowledge you need to protect yourself and your family.