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Posted on Jun 13 on 2017

The calls come in regularly: “I need a sperm donor agreement.  Our donor is a friend.  He isn’t going to be the father, but he is going to spend time with our child.  We want our child and the donor to have a relationship, but he isn’t going to have any legal rights, we are going to make all of the decisions.”

And the answer is always the same: “The agreement is fine to cover you up until the birth of your child.  What happens after that is dependent on what you allow the donor to do with your child, not what the agreement states.  So, if you decide to let your donor act like a father, and he wants then to become a father, he might be able to do that. If you don’t want him to be able to do that, then you need to control the access that you give him, regardless of what the agreement states – or get sperm from a sperm bank where the donor is anonymous.

That is because most states which follow the Uniform Parentage Act (including California), allow a man who receives a child into his home, and who holds a child out as his own, to become a legal father (and by the same token, a woman who does the same thing with a child has the same rights).

That is because the law is geared toward protecting the rights of the child, not the parents.  The law wants to protect the established relationship that the child might have with the donor – provided that the relationship rises to the level of one that would be legally protected – such as between a parent and a child.  

In the recent second published decision obtained by our office in the Jason P. v. Danielle S. case (9 Cal. App. 5th 1000), the Court of Appeal reiterated the ruling made in the first opinion (226 Cal.App.4th 167) that parentage can be established by post-birth conduct.  Therefore, even though a sperm donor is legally barred from seeking parentage based upon his biological status as a sperm donor, he is not prevented from seeking parentage if he can establish that he meets the legal requirements of what is called a “presumed parent”, that is someone who has received the child into his home and held the child out as his own.  Similarly, in the case of a known sperm donor who agrees in writing that he will not seek parentage of the child, he can still do so if he can meet the requirements of a presumed parent.  Again, it is because the donor is not seeking parentage based on the fact that the child was conceived with his sperm, but rather based on the relationship that he has with the child-one which the law wishes to protect.  And as the Court of Appeal tells us in the first Jason P.  case, whether the sperm donor is successful is dependent upon whether the legal parent allows the donor to receive the child into home and hold the child out as his own.

To put it simply, you cannot “have your cake and eat it too” in the parentage arena.  If you want to use a known donor because you think that is advantageous to you or to your child, you can do that. But if you do not want the donor to become a legal parent, do not let the donor hold the child out as his own, and do not let him receive the child into his home, regardless of what the contract says. It is that simple.  

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