How to avoid a dispute when using a known sperm or egg donor

Submitted by prideangel.com

The courts are all talking about same sex parenting disputes. The
Court of Appeal has this week been hearing from a donor applying for
contact with his biological son against a lesbian couple who say they
feel "bitterness and betrayal" (the case has not yet been decided but
you can read the coverage in the Telegraph here). This follows the
decision just a few weeks ago by High Court judge Mr Justice Hedley
(in P&L (minors) 2011, available here in full) which dealt with a very
long and bitter dispute about the role of gay donor dads to two
children (aged 10 and 6) being raised by their lesbian mothers. The
courts are feeling their way with what they call new models of
alternative parenting, and trying to develop an approach for these
types of cases, which are far from traditional family law disputes.
Having advised many same sex parents (both at the planning stages and
those who end up in dispute) we see some wonderfully successful
co-parenting arrangements. But where they go wrong, they go horribly
wrong. What is interesting, though, is that parents always seem to
fall into one camp or the other. I can honestly say that none of the
clients we have advised at the planning stage has ever come back for
legal representation later. Equally, not one of the clients we have
represented in disputes took legal advice at the outset.

So here are our tips on how to make your co-parenting or known
donation arrangement a successful one, and how to avoid ending up in
court:

Talk, talk, talk (and more importantly listen, listen, listen)

Don't rush into trying to conceive. Get to know each other, have
honest conversations about the roles you will have and how much
involvement you all want. Be as clear as you can about your
expectations and be honest with each other and yourselves. If things
don't feel right, have the courage to walk away. There are always
other options. You could find another donor or co-parent, or choose
unknown donation (as mums) or surrogacy (as dads) if what you really
want is parental autonomy.

Understand what roles you will all have

Justice Hedley was keen to "stress the importance of agreeing the
future roles of the parties before the first child is born". And this
fits with our experience. Almost all the cases we have seen which have
ended up in dispute are ultimately about status. Is the biological dad
a father or a donor? Are you equal co-parents, or primary and
secondary parents, or parents with another adult role model? Make sure
you talk about how you see yourselves and each other, as well as the
day to day practicalities of managing your child's care.

Understand how the law works

The law on parentage is complicated, and who will be the legal parents
(and what goes on the birth certificate) depends on the facts,
including how you conceive and the birth mother's marital status.
There may be all sorts of different options, both for choosing who the
legal parents are and for giving some parental status to the other
co-parents if you want to, and problems can often arise where parents
have expectations (for example about what goes on the birth
certificate) which can't be met. Take legal advice, or check out the
free information on our website about this.

Put in place a written agreement

Donor agreements may not (strictly) be legally binding, but they are
incredibly useful. I have always advised parents that putting
something in writing helps with the planning, facilitates honest
conversations and sets a framework which everyone will feel morally
bound by, giving clarity and transparency and setting a really strong
foundation.

However, it now seems they may be more legally binding than we
previously thought. Although the issue is still untested (the parents
in P&L did not have a written agreement, which I suppose comes back to
my point that it is not the parents with properly prepared legal
agreements who end up in court) the case suggests that the court will
pay attention if there is one. Mr Justice Hedley said, in the
strongest indication yet, that "the court will be bound to give
careful consideration and weight to any such agreement".

There is no standard format for a donor or co-parenting agreement, but
having something which is accurate and personal to you (and prepared
with a solid understanding of how the law applies in your particular
circumstances) will be much more helpful than any standard pro forma.

For more information on these matters, please call our office at 305
548 5020, option 1.

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