Lesbian couples wishing to raise children can either (1) adopt a child or (2) have one of the couple give birth with donated sperm.

But there's risks with the second option. Depending on the state law in which the sperm donation occurs, the sperm donor may have legal rights to the child.

Julie Shapiro, a professor at Seattle University Law School, says there's two ways to prevent this:

In some states statutes provide that a donor is not a parent. (Washington happens to be one such state.) In such a state, the women can use a known donor, secure in the knowledge that he will not be a legal father.

Some states do not have a legal provision like Washington’s. Thus, a donor/provider might be a legal parent of the child by virtue of the genetic link between parent and child. In a state like this, the best way for the women to protect themselves from possible interference by the donor would be to use an anonymous donor. An unidentified and unidentifiable man could not threaten their family.

The risks are particularly great for lesbian couples because some state laws eliminating parental rights of sperm donors only apply if the woman receiving the sperm is married. Corey Whelan, contributor to the American Fertility Association Blog, explains:

In some cases, state law will mandate that a donor who provides his sperm directly to the physician performing the insemination cannot be the legal father, but if the sperm is provided to the potential mom directly that is not the case. If you are single or a lesbian it may be harder to protect yourself from the possibility of a known donor suing you in order to establish parental rights of paternity. In addition, current existing law may be contested by your donor later on if he has an established on going relationship with your child.

[Cross-posted at the Gay Couples Law Blog, which discusses same sex family law, estate planning, and taxes.]

Gideon Alper

Gideon Alper