Common Mistakes Made in Reproduction Agreements
An increase in medical technology provides couples who cannot naturally conceive with many options. However, legal matters should be taken care of prior to having a child via assisted reproduction. Here’s everything you need to know about mistakes to avoid in a reproductive agreement.
A reproduction agreement legally identifies the child’s parents and protects all parties involved (donors, surrogates, and intended parents). Once the surrogate, intended parents, and donor (if applicable) agree on who will take care of the child, a reproduction agreement must be submitted to the court prior to the child’s birth. When utilizing assisted reproduction methods, such as artificial insemination or embryo transfers, both the surrogate and intended parents must sign the reproduction agreement before the child’s conception. Reproduction agreements include, but are not limited to, donor and surrogacy agreements.
5 Common Mistakes to Avoid When Using a Sperm Donor
- Disregarding the legal complications of using a known sperm donor. When looking for a sperm donor, a couple may opt to find a sperm bank, where the donor is anonymous, or select a person they know. Although knowing the sperm donor personally may provide the couple with a sense of security, it is vital to ensure that the donor’s parental rights are completely terminated. Legally, using an anonymous donor from a sperm bank is easier since all parental rights have already been waived. To avoid such complications, it is important to involve attorneys early in the process.
- Performing the insemination process at home. Not every state permits at-home insemination. The procedure is not legally advised, even in the states that do permit at-home insemination, because there is no third party, such as a physician, to provide testimony to the court about the assisted conception. In order to avoid confusion and have the judge believe the mother did not have intercourse with the donor, couples should use a physician to perform the insemination process. Here’s a list of states that require physicians for artificial insemination.
- Relying on the birth certificate to grant the intended parents legal rights. Courts have the power to determine and change who are the legal parents despite the birth certificate. In the past, when mothers move to different states, divorce, or seek government benefits, the court has intervened because mothers rely on the birth certificate as proof of parentage. Moreover, the court has played a role when sperm donors want to have parental rights for the child and rely on the birth certificate as evidence. In order to avoid future legal conflicts, parents should conduct a second parent adoption. A second parent adoption preserves the legal rights of both intended parents.
- Failing to include the donor’s spouse or partner in the process.The donor’s spouse influences the donor’s compliance with the agreement. Both the donor and the donor’s partner/spouse decide on whether the agreement is acceptable in regards to the donor’s sexual activity, confidentiality, and future contact. Therefore, donors should include their partner in the reproduction agreement to avoid any complications.
- Using a donor agreement found on the internet. Both the donor and the intended parents are required to have legal representation by different attorneys. The agreement may not include circumstances for their specific donation or be incomplete if the donor and intended parents use a donor agreement found on the internet rather than adhering to an attorney. Failure to do so can result in lack of protection for the donor’s and parents’ rights.
Related: Are Sperm Donors Liable for Child Support in California?
5 Common Mistakes to Avoid When Using a Surrogate
- Failing to include specific details in the surrogacy agreement. Previously, the surrogate mother and the intended parents have not included key details about communication or expected (if any) involvement between the surrogate and the child. For instance, if the surrogate is expected to invite the intended parents to every doctor’s appointment, both parties must agree on the terms. The surrogate and the intended parents should acquire legal representation throughout the entire process in order to receive legal guidance and protect their individual rights.
- Having the same attorney represent both the surrogate and the intended parents. Although the process of conceiving a child is personal and exciting, neither the surrogate nor the intended parents should begin the process without proper representation. The court has authority to refuse the surrogacy agreement in the event where both parties employ the same attorney. To avoid the risk of refusal, both the surrogate mother and the intended parents should work with different attorneys.
- Allowing the donor to have a parental role with the child. Although there are unique circumstances in regard to parental involvement, including the surrogate in the child’s life can be messy, especially if the surrogate is a close family-friend. Involving the surrogate in the child’s life can encourage the surrogate to change their position from a surrogate role to a parental one; leaving the legal rights of the mother who did not carry the child are at risk.
- Not having a surrogacy agreement prior to conception. Surrogacy agreements protect the legal rights of both the surrogate and intended parents by waiving any parental responsibility for the surrogate. In using a surrogacy agreement, the surrogate may be obliged to avoid certain behaviors while having a role in conceiving the child, such as high risk sexual behavior. With a surrogacy agreement, the intended parents can assure that the baby is in proper care.
- Relying on medical consent forms as evidence of parental rights. Throughout the pregnancy, the surrogate mother must attend frequent visits to the doctor in order to check on the progress and health of the child. During these visits, the surrogate mother may need to sign medical consent forms about any procedures, benefits, and risks. The law can be picky about using medical consent forms as proof of parental rights due to details like the location of the clinic or location of birth. Therefore, one should consult with an attorney who specializes in fertility law.
Related: What Is a Surrogate Mother?
Contact Us
If you or a loved one would like to learn more about the mistakes to avoid in a reproduction agreement, get your free consultation with one of our family law attorneys today!