Monday, November 26, 2012

Why it is so important to have a legally valid Donor Contract or Gestational Agreement

Family law is a complicated area of law, even when the subject is a nuclear family in which the two people involved are both biological parents of the children in the family. However, even more complications can arise when venturing into areas of law that are different from what most people in our society have come to think of as “the traditional family”. Specifically I am speaking of situations involving assisted reproduction, surrogacy, gestational agreements, and donors.
There are many available options for people who want to become parents. While technology and societal acceptance has led to an increase in options (and a willingness to use them), the law has not really caught up yet.
If you are involved in, or are considering, an alternative situation, you should be completely educated and aware of the risks, and of your rights. A situation that may seem simple can create heartache if not properly prepared.
The biggest risk comes from situations in which “everyone is friends” and so it is thought that there is no need for a legal agreement and no need to use a doctor or clinic. Here are the most common:

  1. A woman desires to have a child and a male friend agrees to be the donor. They both agree orally in advance on all the details of what will happen when the baby arrives. Often, the man will agree not to be involved in any way and the woman will promise not to seek child support. They draft an informal agreement (which is later found not to be legally binding) or they decide not have a written agreement at all, because they “trust each other”
  2. A woman agrees to bear a child for a friend (or couple). She plans to give the baby to the person (or couple) after the birth and promises to “sign away” her rights.

Those are the common situations, now here are the potential problems:

    1. No matter what the situation, and how good and trustworthy the involved parties are, people change their minds. They do so for all kinds of reasons, and having a child brings out some of the deepest emotion that humans experience. (see this article from the Houston Chronicle, Sept 20, 2012, showing just such a situation, “Court may define what a mother is”).
    2. It isn't just up to the adults who are involved. The child will have rights, the biological parents have rights, and unless a court agrees to terminate someone's parental rights, it will not happen. The two people who are the biological parents (plus their mates and families) may well end up bound to each other for at least 18 years, like it or not! A judge can order child support, even if one parent doesn't want to pay it and the other parent doesn't want to receive it!

What to do?

First of all, an oral agreement is just not going to be enough. You will need to find out what your options are in the scenario that you are planning. Hopefully, you will have a consultation with a Texas family law attorney before trying to conceive so that you can be certain that you are doing everything possible to make sure that your agreement is within the law, and will be likely to be upheld by a judge. Certainly two people can get together and conceive, but what happens afterwards may be completely out of their control. Why take that chance?

In looking for an attorney, you should seek a Texas family law attorney who is familiar with and has experience with alternative family arrangements, sperm donor agreements, and gestational agreements. The attorney should be willing and able to help you deal with the initial paperwork and court filing to completion. If you are dealing with a doctor or agency in a gestational or surrogacy situation, your family law attorney can help you, communicate with the involved health care providers, and draft and file all necessary paperwork at the proper time.

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