When I talk to potential clients considering using a known sperm donor (especially lesbian couples), I often get two questions:
"Can't I just do the donor agreement myself?"
"Do I really need a sperm donor agreement?"
My answers aren't necessarily for the reasons you would expect.
Do I need one?
Clients who have done some research know that the donor agreement itself is not sufficient in New York (and many other states) to extinguish parental rights and responsibilities of a known donor. In New York, if you're married, your spouse consents in writing to the insemination, and the insemination is performed by a medical professional, the donor will not have any parental rights. But if you're not married, you can't take advantage of those protections. You and your partner will need to do a second-parent adoption to terminate the donor's rights and secure parental rights for the non-biological parent. And even if you are a married same-sex couple, I still recommend that you do a second-parent adoption.
The real reason, though, to do a donor agreement is to make sure that you and your prospective donor are on the same page about key issues like confidentiality, visitation and contact, his safer sex practices during the time when provides samples, when and how samples will be provided, and who retains control of the samples. Even if these provisions can't be enforced per se, they will make sure that you have addressed these complicated issues and reduce the likelihood of disagreement in the future. If you and the donor don't see eye to eye on these issues, it probably means that he isn't the right donor for your family.
Importantly, the agreement creates a written record that he is a just donor -- not a co-parent (unless that's your intent). Lost Boys actor Jason Patric and his former girlfriend have spent years in court arguing over whether he is a donor or parent. Without any guidance from Patric and the child's mother, the courts have had to scrutinize their private lives in order to try to figure out what they intended. One way to avoid that happening to you is with a written agreement.
There are various template agreements available on the internet and they can be a great place to start when having a conversation with your potential donor about the important issues.
However, I have yet to see a sample agreement online that was drafted for use by a married same-sex couple living in a marriage equality state. Using a template that doesn't take your family situation into account could have serious ramifications in the future -- especially if you make it sound like you and your spouse did not intend to raise the child together.
You Need a Lawyer on Your Team
Hiring a lawyer is not just about drafting a donor agreement. In the way a doctor will help you conceive your child and ensure the baby is healthy, a lawyer is just as needed for safety. A lawyer will help you make sure that you and your spouse or partner (if you have one) are legally recognized as the child's parents and that no unintended person has parental rights or responsibilities. A lawyer can advise you on the law of assisted reproduction, draft a donor agreement, prepare an affidavit in which the donor denies paternity, and file a second-parent adoption to secure the parental rights of your spouse or partner. Consulting with a lawyer early in your family building process will help you identify the legal road map for protecting your family.