I handle of a lot of adoption cases for lesbian couples in which one partner becomes the biological mother through alternative insemination. One of the most common misconceptions (if you’ll pardon the unfortunate pun) is that when the couple uses the sperm of a donor whose identity is known to them, everyone can just agree that the baby will belong to the lesbian couple and that’s the end of the story. Nope. Sorry, folks. That would be way too easy.
The known sperm donor is the biological father unless and until his parental rights are terminated by the Probate Court. He has rights and obligations associated with the child including the right to custody and visitation. He may also be obligated to pay child support to the mother, if she is the custodial parent.
We all know that the intent of the couple and their known sperm donor is for the lesbian couple to both be deemed the legal parents of the child. That can certainly be accomplished but it does require a court decree. I’ve had couples tell me that they simply won’t put the known sperm donor’s name on the birth certificate as the father. Problem solved, right? Nope. As part of the co-parent or step-parent adoption process, you will have to produce documentation from the sperm bank that the sperm donor was anonymous if no known father is listed. Sorry folks, you can’t mess around with the court.
Other people have suggested that they’ll just write up an agreement between the known sperm donor and the couple and that will solve everything. Again, nope. Sorry. Too easy. The guy is still the biological father unless and until the judge terminates his parental rights.
There are a lot of reasons for this, not the least of which is that the State has an interest in protecting your child. It also has an interest in not having to support your child for the next 18 years. Let me explain. It’s wonderful when a couple decides to start a family. They are full of good intentions, lots of love and plenty of dreams for the future. Unfortunately, not all couples stay together until the baby is born and the adoption has been completed. The State is aware of this. The Court is aware of this. The Department of Children and Families is aware of this. Therefore, it is not in the best interests of your child to enter the world with only one legal parent. If something happens to the biological mother, everyone wants there to be another legal parent to step in and raise the child.
But I want my partner to be that person, you say. I hear you, honest I do. That can certainly become a reality. You just can’t do it with a slight of hand. It has to be done correctly, through the Probate Court. There are ways to memorialize everyone’s intentions before and during the process. There are documents that can be created to assist you if something unfortunate does occur.
If you are a lesbian couple desiring to start a family and you wish to use a known sperm donor, please take the time to speak with a lawyer who understands the same-sex adoption process. It’s always best to be informed.
Disclaimer: The information, comments and links posted on the blog do not constitute legal advice. I will not respond to any specific legal questions in the comments section of this blog. Read my entire disclaimer.
copyright 2011 Irene C. Olszewski