If you are planning to use an egg or sperm donor (or both) to conceive a child, NicholsonPham recommends that you have a Donor Agreement with the individuals making the donations. A donor agreement is a type of contract that clearly spells out the rights and responsibilities of the intended parent and the donor. In North Carolina, this is particularly important because our statutes lag behind the current medical science and do not adequately protect all families.
Some of the items that may be included a donor agreement are:
- Donor testing for HIV and other medical conditions
- How many donations will be made, how often and for how long and where
- Whether the donor will be compensated and/or who will pay for any expenses
- How or if the identity of the donor will be revealed to the child
- How or if there will be future contact between the donor and child
- Waiver of parental rights by the donor
- How or if the child will be adopted
- Legal representation of the parties.
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Obviously, there are never any guarantees as to the health of any donation and any resulting child. A donor agreement can require a donor to get tested for major medical conditions and can require a donor to abstain from alcohol or drugs during the period of donation. All parents want their children to be as healthy as possible and your donor may be willing to provide the healthiest possible sample.
Yes. Even when you are entering an agreement with a friend, NicholsonPham always recommends having a legal contract.
Every client’s needs are different and the terms of the donation period are up to the individual parties. Typically, a donor would agree to make a minimum of two donations to provide the intended parent with two chances for conception. A donor may choose to make donations at a local fertility clinic or through a sperm bank or cryobank that may be located somewhere else in the United States.
Not always. The terms of the donation are up to the individual parties. In many circumstances, donors are willing to donate genetic material because they genuinely want to help someone become a parent. Many cryobanks keep embryos in storage that have been donated by past couples, in order to help people become parents in the future. Those donations may be done for no payment, although there will be a charge for the services of the cryobank.
Yes, because the donor’s spouse may also have certain rights and he or she should be included as a party to any donor agreement.
The laws surrounding parentage in North Carolina are sadly behind the times and haven’t kept up with the myriad of ways in which people become parents. Even if the donor doesn’t want to be a parent, his or her biological connection to the child will matter to North Carolina courts. Our job at NicholsonPham is to make sure that the only person with rights to the child is the intended parent and not the donor.
It depends on your particular situation. In North Carolina, as with most other jurisdictions in the United States, a birth certificate is not absolute proof of who is the parent. (Link to explanation of why birth certificate isn’t parenthood). For example, a donor could later bring a parentage lawsuit and ask a court to accept DNA evidence as to who is the parent. An adoption is a legal court order that severs all parental relationships except for the adopted parent or parents.
An egg or sperm donor may want to require that an intended parent formally adopt the child so that there are no longer any parental responsibilities for the donor.
At NicholsonPham, we always recommend that the donor have a separate attorney to review and explain the donor agreement. In any contract, it’s important for both parties to understand their rights and responsibilities. If the donor later claims that s/he didn’t understand the contract, it can be frustrating and time-consuming and end with litigation. Our preference is that all parties have separate attorneys, even when the intended parent and the donor are friends. We can represent a donor, as long as we aren’t already representing the intended parent.
At NicholsonPham, we always take our clients through the worst case scenarios to fully illustrate the possible pitfalls and provide as much legal protection as we can. Because there is very little law in North Carolina regarding assisted reproductive technology, it is uncertain how our courts might decide issues raised by donor agreements in individual cases. But based on legal interpretations in other states, donor agreements should be upheld or at least used as evidence of the intent of the parties when they entered into a donor agreement.