If You’re A Married Couple Thinking Of A Known Donor…

While parenting partnerships come in different forms, one of the most important distinctions – from a legal perspective – is the difference between a “known donor” (typically referring to a known sperm donor, though sometimes used for a known egg donor) and a “co-parenting” relationship.  In the former, there is generally an expectation that the known donor – even if he plans to be an active part of the child’s life – will not have the legal responsibilities of a parent.

However, many state statutes on “known donors” have not kept up with the times.  The known donor statutes of many states only address the idea of a married couple using a known donor. (See our state-by-state laws for more information.) In most of these states, the statute declares that a known sperm donor to a married couple will NOT be considered a legal parent, and that the husband of the impregnated woman will be seen as the child’s legal father. These laws were enacted to make sure that known donors to married couples didn’t try to assert legal rights to the child.

So its not surprising that, in this Indiana Court of Appeals Case this month, the court found that the ex-husband of a woman impregnated with the donor sperm of a friend was still legally responsible for the children of the marriage.

Where this will become interesting is when same-sex couples, who use a known donor, work their way through the court system in states where these types of known sperm donor laws exist.  While many of the states recognizing same-sex marriage have sperm donor laws that recognize a broader range of relationship possibilities, the question is – will states apply the same sperm donor rules for married same-sex couples that they do for opposite-sex couples, i.e., will a known donor be cut off from making an argument for legal parentage?

Most observers believe that this will indeed be the case. However, the “marital presumption” that the child of a marriage is the legal child of the two partners of the marriage is likely to be challenged at some point by a known donor seeking legal rights.  This will be an interesting case to watch indeed…