When a Known Donor Is Treated as a Parent

The rule everyone remembers is that a donor is not a parent. It is accurate as far as it goes. What produces litigation is the part underneath: whether the arrangement in question satisfies the statute's definition of a donation, and whether what happened after the birth created a parentage claim that has nothing to do with donor status.

The rule and its conditions

States take two approaches. In the uniform model the provision is short and unconditional: a donor is not a parent of a child conceived by assisted reproduction. There is no requirement that a physician be involved and no requirement of a written agreement to achieve the exclusion.

California takes the conditional approach. A donor of semen provided to a licensed physician and surgeon or to a licensed sperm bank for use in assisted reproduction by a woman other than the donor's spouse is treated as not being the natural parent, unless the donor and the woman signed a written agreement before conception that the donor would be a parent.

Where the semen was not provided that way, the same statute supplies alternative routes to the exclusion: a written agreement signed before conception that the donor would not be a parent, or a court finding by clear and convincing evidence that the child was conceived through assisted reproduction and that the parties had a pre-conception understanding to that effect.

The difference matters most for arrangements between friends. In a conditional state, a private donation with nothing in writing sits outside the safe harbor and the outcome depends on proof of intent.

What assisted reproduction means

Every one of these provisions applies only to assisted reproduction, and statutes define the term to exclude conception by sexual intercourse. The definition typically covers intrauterine or intracervical insemination, donation of gametes or embryos, in vitro fertilization and embryo transfer.

Conception by intercourse falls outside the framework entirely. The ordinary parentage rules apply, and an agreement that the man will not be treated as a parent is generally unenforceable, because the obligation of support belongs to the child rather than to the adults who agreed about it.

Home insemination usually falls inside the definition, which is why the conditional states matter so much. The method is assisted reproduction, but the gametes were not provided to a licensed physician or a bank, so the safe harbor turns on the writing.

Consent and the writing that establishes it

The mirror image of the donor question is how an intended parent who did not give birth becomes a parent. The uniform model provides that an individual who consents to assisted reproduction with the intent to be a parent of the resulting child is a parent, and requires that consent to be in a record signed by the person giving birth and by the intended parent.

Failure to sign is not fatal. Statutes permit a court to find consent where a party proves by clear and convincing evidence an express agreement entered into before conception that both would be parents, or where the parties resided together with the child for the first several years of the child's life and both openly held the child out as their own.

Those alternatives are the provisions that decide most contested cases. They also explain why the same facts can produce opposite results depending on the state: a couple who separated shortly after a birth may satisfy the pre-conception agreement route and fail the holding-out route, or the reverse.

What the child may later ask for

A separate set of provisions deals with information rather than status. Recent statutes require gamete banks and fertility clinics to collect identifying and medical information about donors, to ask each donor whether identifying information may be released when a resulting child reaches adulthood, and to keep the records for a defined period.

Where a donor agreed to release, the information is disclosed on request once the person conceived reaches the age the statute sets. Where the donor declined, medical history is usually still available in non-identifying form, and some statutes require a bank to make a good faith effort to contact the donor with a later request.

These provisions do not change parentage. A donor whose identity is disclosed is still not a parent, and disclosure creates no support obligation and no right to contact. They matter because they are the reason a private arrangement with no records leaves the child with nothing to ask for later, which is a consideration separate from the legal risk to the adults.

How informal arrangements fail

The recurring pattern is an arrangement that worked until it did not. Friends agree that one will donate and will have no legal role but will be present in the child's life. Nothing is signed because the agreement feels clear. Years later the relationship between the adults deteriorates, or a support claim is filed, or the donor wants more contact than the parents want to give.

At that point the court is asked to reconstruct intent from conduct, and conduct usually points in several directions at once. Who was listed on the school forms, who provided money, who was introduced as what, who attended medical appointments. None of it was arranged with a later dispute in mind.

The failures are avoidable at low cost. A pre-conception writing that states the parties' intent, executed by everyone involved, satisfies the conditional statutes and is strong evidence in the others. Using a licensed physician or a bank, where feasible, satisfies the safe harbor in states that require it. And where the parties actually intend shared parentage, saying so in the record produces a more reliable result than an unwritten understanding.

Where a second parent's status is intended, the routes that produce a judgment rather than a presumption are described in obtaining a parentage order, and where a surrogate is involved the framework in the requirements for an enforceable agreement applies. Where no framework fits, families sometimes use a second-parent adoption, which brings the requirements in the study and its disqualifying findings into play.