A lesbian couple hoping to have a baby turned to their friend for help. What happened instead was their worst nightmare. Ever wonder what occurs when a sperm or egg donor decides they want access to the child? Two years ago, a Texas Court of Appeals took on this question in a case about assisted reproduction, specifically looking at whether a man acted as a sperm donor or whether his actions were consistent with a father's actions. If the man was the father of the child, and not merely a donor, he could claim custody and any right associated with being a dad. To demonstrate the importance of a well-written artificial insemination agreement, this article looks at In re P.S., a recent case that established a man could assert parental rights to a child due to the location artificial insemination was performed and a lack of written agreement.
Here is what happened.
The biological father and mother of the child were not married to each other, but were friends. Importantly, the mother was in a relationship with a woman, whom she eventually married, and was seeking to have a child using assisted reproduction. The father, thinking he would not get married in the future but wanting to have kids, agreed to provide sperm to the couple. The parties entered into an oral agreement and the mother gave the father sterile equipment so that he could provide his sperm. The mother then inseminated herself at home, rather than at a physician's office, and a child was conceived. The father attended a few doctor's appointments, the gender-reveal sonogram, and was even present at the time of the child's birth.
After the child was born, the father executed an acknowledgment of paternity (which is hugely important here) and the child even received the father's last name. The biological parents of the child eventually lost contact and the mother married her then-girlfriend. About a month after the child was born, the mother asked (in-writing) that the father give up his rights as a father. As a response, the father went to the Office of the Attorney General (OAG), asking to be made the father officially and the OAG filed a case to establish a parent-child relationship between the father and the baby.
What came next was potentially pivotal. At trial, both biological parents testified that they never signed a written agreement about the artificial insemination. The father testified that the parties had agreed he would be a part of the child's life. In contrast, the mother testified that the father's only role was that of a sperm donor who could visit the household as a friend. The mother's wife testified asking to find the father a donor, so that she could adopt the baby. In the end, the Court found a parent-child relationship between the father and the child, awarding custody to both parents and establishing a visitation schedule, as well as an order for child support to be paid by the father.
You might be thinking… but why can't the mother and her wife just be considered the parents?
The problem in this case was that the individuals chose to do insemination at home, rather than a doctor's office, did not have a valid agreement, did not have licensed physician presiding over the process, and did numerous things to assert the man's paternity. The couple wishing to have the child needed to have done the following for the father to not be able to assert his rights:
- Draft and sign a valid donor agreement where the donor agreed to be just that: a donor.
- Not establish paternity for the donor.
- Not allow the donor to engage in parenting activities, rights, or privileges, like give the child the donor's last name or allow visitation - especially not without a properly drafted agreement.
- Not artificially inseminate at home. Even if the child was not the product of a sexual relationship (or any romantic relationship between mother and father), to be treated as a sperm donor, the insemination has to be done at a licensed doctor's office.
- Records of both parties' consent must be kept by the doctor. As an aside, it would be very wise to make a copy for yourself for your records.
While it is appropriate to limit contact with a true donor as the couple did here, by signing an agreement asserting parental status for the father and giving the child the father's last name, the mother did not properly shield herself and the child from the father's ability to assert his rights as a dad. Asking the father to take back his initial agreement, while probably the best thing to do in the case of the mother here, was not any form of guarantee that the father would actually revoke his rights.
So, what should you remember?
If you are looking to become a donor or if you are looking to use artificial insemination or reproduction to become a parent, you need to have a well-drafted written and signed agreement between all the involved parties stating their roles, extent of consent, and what parties are to be parents with the responsibilities and obligations of parents. The status of the donor needs to be stated explicitly and a record should be kept of every communication. For the actual process, you must (it is vital) have a licensed physician oversee the insemination process at their place of business and the physician needs to keep record of your agreement and consent to the process. Just remember the case we talked about here. Had a donor agreement been properly drafted and signed, then the outcome of the case would likely have been different and there would not be a custody or paternity battle.
Here are the Texas laws you should know about artificial insemination and parenting.
The Texas Family Code defines assisted reproduction as a way to cause pregnancy that is not sexual intercourse. Specifically, the Code includes the following options:
1. intrauterine insemination;
2. donation of eggs;
3. donation of embryos;
4. invitro fertilization and transfer of embryos; and
5. intracytoplasmic sperm injection.
Texas law defines what a donor is, explicitly stating that a donor provides egg or sperm to a licensed doctor so that it may be used for assisted reproduction. A husband or wife is not a donor if they are providing sperm or eggs to their wife. A donor is also not a parent. If an unmarried man provides sperm to an unmarried woman, there are two things to remember.
1. If the man intends to be the father of the resulting child, gives the sperm to a licensed doctor, and consents to his sperm being used for assisted reproduction, he is considered the father; and
2. The licensed doctor must keep a signed, written record of both the man and woman's consent that the man is to be the father.
In reality, this means that a donor is not merely a donor if fertilization is done at home even if the parties do not have sex.
One thing to absolutely do is to sign a voluntary agreement, or Acknowledgement of Paternity (AOP). This agreement needs to be filed with the Texas Vital Statistics Unit, which keeps records for Texas. If you are not sure who the dad is, do not sign!
When artificial insemination is involved, Texas has a presumption for opposite-sex couples that the child is of the marriage, belonging to the married husband and wife, not the donor and the wife. This means that a man who is married to a woman who is able to conceive through a donor is still presumed to be the father of the child. Also, the donor generally will not appear on the birth certificate, unless a court with jurisdiction over the parties stipulates otherwise.
FAQ: Artificial Insemination, Same-Sex Surrogacy, and More
Artificial insemination is a complex issue and many questions arise during the process. Here are our most frequently asked questions.
What happens if I am a single woman seeking to use artificial insemination?
The child legally has no father. No father needs to be asserted or listed on the birth certificate. The same rule applies to two married women. No father needs to be listed on the birth certificate or officially alleged by agreement. The non-biological mother can adopt the child and the child will legally have two moms, no need for a mom and a legal dad.
Does an artificial reproduction/insemination agreement need to be in writing?
Yes!!! This is so important we used multiple exclamation points in our answer. Also, the agreement needs to be signed by the parties.
Can my husband be my sperm donor?
No. The husband of the woman seeking to get pregnant is not considered a donor when he gives his own sperm to the wife. The husband is just presumed to be the father.
What is the status of an egg donor and is she the child's mother?
The egg donor is not considered the mother if you have a written agreement. As with a sperm donor, there should be a signed, written contract with the egg donor establishing her as merely a donor.
What is a gestational mother?
A gestational mother is what Texas calls surrogates. The gestational mother must have a written agreement with the couple she is helping conceive. The couple must be married for both to be seen as parents in the eyes of the law.
Are there requirements to be a gestational mother?
Yes! A woman must have delivered a healthy baby before. The woman must also be healthy. In Texas, gestational mothers need to be aware of two very important details. First, the agreement you sign with intended parents cannot limit decisions to safe-guard your health or the health of the baby. Second, you have an ability to terminate your agreement before you become pregnant even when a court has validated (basically, making it official) an agreement.
What is a gestational agreement?
A gestational agreement is a written agreement signed by the intended parents and the gestational mother that gets filed with a court to get it validated. If the court validates the agreement, it will then issue an order stating that any children born under the contract are considered the children of the intended parents and not the gestational mother by law.
Who qualifies to be an intended parent?
Texas requires medical proof the wife is unable to have a baby for physical reasons. Plus, intended parents must be as qualified as adoptive parents and have a home study conducted.
If my husband died and then I got pregnant with his sperm, who is the father?
The short answer is that the child does not have a father. The long answer is that unless the husband consented in writing prior to passing away to becoming a father should his sperm be used, the deceased husband is not considered the father. The same rule applies for divorced spouses. If you use your ex-husband's sperm to conceive a child, unless the ex-husband explicitly agreed in writing to be the child's father, he is not considered the dad. The thing to remember is that legally, death and divorce terminate a marital relationship so the artificial insemination process would work the way it works for single women hoping to conceive.
Do I need to be biologically related to the child if I use a surrogate or sperm donor?
No. The child may legally be your child even if neither the sperm or egg came from you (or your spouse). Keep in mind you absolutely need to have a written, signed, validated agreement in order to demonstrate that the child is legally yours.
Do I need my husband's (or wife's) consent to donate eggs?
No, it is your body and you do not need your husband's/wife's consent to donate your own eggs. Discussing your plan with your spouse is probably not a bad idea, but you do not need his/her consent.
Do I need my wife's (or husband's) consent to donate sperm?
No. However, having a conversation with your spouse about your intentions is a good idea.
What should a same-sex couple do to be a child's parents when a surrogate/donor is used?
Same-sex couples often face a very arduous process to become a child's parents jointly. Historically, in Texas, one parent would be designated on the birth certificate and then the couple would have to reach out to a state that recognized same-sex adoption, adopt the child, come back to Texas and file with the Vital Statistics Unit to establish parentage for both parents. The process is hopefully getting easier, but here are the steps you should now take.
1. Contract: Create, review, and sign the gestational agreement and have the court validate it to make it official and describe the status of each party.
2. Have at least one parent named on the birth certificate (if possible) and file proof of birth with the court.
3. Get a second order from the court determining you are the parents of the child.
What if I am a single person hoping to use a surrogate or a non-married same-sex couple wishing to have a child?
Texas law has yet to clarify whether single people are covered by the gestational surrogacy provision in the law because initially it was intended for married couples who were unable to conceive. There are several things you should do.
1. Contract: Have a valid, signed gestational agreement between the parties involved.
2. After the child is born, have the gestational mother (or her and her husband if she is married) relinquish their parental rights and duties within 2 days (48 hours) of the child's birth.
3. If the child shares any DNA with you, have genetic testing done in compliance with Texas law to establish a genetic link between you and the child.
4. Legal proceedings:
a.You need to have the parental rights of the gestational mother and her husband legally terminated.
b.Ask the court to adjudicate you as the parent.
c.You can ask the court to have a non-biological parent named as a joint-managing conservator. This will give the non-biological parent the same rights as you to the child.
5. Adoption: This step is often a reality, especially for same-sex couples, whether they are married or non-married. A non-biological parent (intended parent) can adopt the child but the process will not be complete until the intended parent has cared for the child consistently for 6 months.
Can a donor establish paternity?
Yes. If a donor wants to establish paternity, they are able to lawfully adopt the child or petition a District Court to establish parentage. Should the court determine that the donor is a parent, then an order gets issued from the Vital Statistics Unit and hospital to show that the donor is the parent, rather than the married couple.
About the Author
Deborah Bankhead is an Attorney at Varghese Summersett Family Law Group. Deborah believes compassion, patience, and understanding are required of family law attorneys and she is a relentless advocate for families in crisis. In her spare time, Deborah volunteers to help teens interested in the legal field pursue their dreams and likes to hang out with her cat.
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