Known Donors: Cautions and Questions

A recent case and some news from Canada have gotten me thinking about known donors.

A Santa Monica, Calif. court ruled in the case of Daniel C. vs. Karen B. that Daniel, a known sperm donor whom Karen had found on Craigslist, had no rights to the child she conceived. The two had signed a layman’s agreement stating that Daniel could visit the child occasionally, but the child would live with Karen, who would make all decisions about the child’s upbringing. The also agreed Karen’s partner could adopt the child.

After the child was born, however, Daniel became pushier, and eventually sued for joint legal and physical custody. He claimed that because Karen had signed a Voluntary Declaration of Paternity immediately after the child’s birth, naming him as father, he had rights to the child. Karen responded that she signed it under the influence of drugs after a cesarean, and did not know what she was signing. (My spouse had a C-section to have our son; I fully believe Karen’s contention here.)

The judge ruled that the Voluntary Declaration of Paternity is primarily designed to determine who the father is when more than one man claims paternity, was not relevant and did not have greater weight than the sperm donor statute. (Via press release from Trabolsi & Levy, Karen’s attorneys.)

All’s well that ends well? Perhaps. But Karen still worries, ABC News reports, that Daniel will take her three-year-old son to his native Brazil during twice monthly visitations, and not return.

Interestingly, in reporting on the case, ABC News spoke with Linda Elrod, director of the Children and Family Law Center at Washburn University Law School. Elrod testified in a case in Kansas in 2007 when a man sued the single mother and friend to whom he had donated sperm, claiming parental rights. The court said he could not be the legal father without the mother’s agreement in writing. Elrod, arguing on behalf of the children, claimed that a “known genetic father” who wants parental responsibility should have that right. ABC News quotes her as saying, “We do violence to children to drive out or not allow them to have relationships that can help them financially or emotionally. Why not allow for more than two parents? Having a psychological parent and a biological parent expands their horizons.”

So much depends on the specific circumstances and people involved, though. I’m hesitant to say there’s a one-size-fits-all answer here. Much depends on the intent of the parties to begin with—and in each case we need to figure out what is truly in the best interests of the child. Genetics, to me, isn’t the sole determining factor.

On a related note, however, LGBT family law expert Nancy Polikoff points out (via New Jersey lawyer Bill Singer, whom Helen and I used) some proposed laws in British Columbia that would detail who is and who isn’t a parent in a variety of situations involving same-sex couples, donors, and surrogates—and even allow for the possibility of three legal parents (subject to written agreement among the parties).

Canada seems to be on the leading edge in terms of giving legal recognition to three-parent families. An Ontario court in 2007 ruled that a child can have three legal parents: bio mom and dad and the bio mom’s partner. And at least one other Canadian trio has tried to draw up contracts to protect the rights of all three parents.

As I wrote a few years back, however, we need to remember that some families want to be a unit of three parents, whereas others prefer only two (or one, in the case of a single mom by choice). Will courts be able to understand intent and accept these new arrangements, or will they try to shoehorn families into molds that just don’t fit? Yes, the best interests of the child come first and foremost, but as many still believe this means the traditional one-mom-one-dad configuration, that’s not as clear a touchstone as we might hope.

For more on the joys (as well as the dangers) of using a known donor, I recommend the terrific essay collection And Baby Makes More: Known Donors, Queer Parents, and Our Unexpected Families (about which more here).

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