Friday, February 03, 2006

Oh, those pesky little laws...

Anybody want to share what you have done legally to protect your family, spouse, kids, kids-to-be, etc.? I'm excited about this KD possibility, but my enthusiasm kind of snuck up on me- this is not something I considered much before, so I'm feeling clueless about the laws. I know donor contracts are not always recognized by courts, varying from state to state and from judge to judge, and I reeeeally don't want to wind up in a big visitation/custody battle. I've read (vaguely) of a KD getting awarded basically joint custody even though he signed a donor contract clearly stating the limited contact he would be allowed. So, I like our PKD, and this is not a commentary on him, but I really don't know him, either, not to mention things change bigtime once a baby is on the scene, and I'd like to be careful. So, I'm interested to know any legal differences between going just with a donor contract, going through a "directed donor" process at the sperm bank (which now seems like it will be impossible, since the FDA banned gay men from donating, unless that doesn't apply to "directed donors"), and going through a doctor? The last of which leads me to more questions, about insurance, since the language in our policy manual seems to suggest that our company will not cover any inseminations by a doctor unless one of us turns out to be "medically infertile". It makes me wonder if my doctor could write "bodily aversion to male gonads" on the treatment referral form? I don't think so, and we would really like a gay donor (that the FDA is currently oppressing), so that leads us essentially back to the plain old donor contract. Ack! Anybody have two cents for the cup? Or more questions?


Trista said...

Here's what we did:

We drew up a contract even though we know if push came to shove it may not be honored in court. Still, we used the contract to get very clear about expectation and intent -- that way both we and he were on the same page about what we were doing. It also serves as a written, notarized record of that intent, so that if we did go to court no one could say, "yes, but what we intended to do was this..." which would then just be a case of he said/she said. Finally, we put in a clause that dictates mediation in the case of a dispute, thinking that a judge would just see that clause and kick us all out of court and to mediation first -- and mediation is always better.

In most of the cases I've read about LGBT families ending up in court, the issue is about intent. Where the bio mom claims that she never intended for the non-bio mom to be a parent etc... so we figure that the contract would be a big tool in that regard. Also, it means that the donor or his family (not that we're worried about the donor, but his family is an unknown) could not argue (well, I guess they could, but this would stand against them) that he had always intended to be a father.

We also wrote out a statement of intent about our family -- who we intended to be grandparents (my parents) and aunts, uncles, etc. We wrote out that we intended (we did not put this in the contract, but we did put in a clause that states that whatever relationship KD formed with the child was never to be construed as a parental relationship) for KD to have a relationship with the child as a family friend. Again, we were just trying to write everything out to be clear then and to leave a record for the future.

Other things we did:
We gave Julia my last name to stress that I am her mother. This means that I have an easy time with officials who just assume that because she and I share a name that I gave birth to her.

In our wills, we specifically state that we do not leave to Julia to various members of Kristin's family for deliberate reasons (so that if we died they couldn't argue that such a thing must be a mistake) and we're forming a trust for Julia and assigning guardianship of the trust to a completely different person than the one who will be getting Julia. This is because if both Kristin and I were killed, Julia woul inherit nearly a half million dollars of insurance money plus a house and a condo plus what ever money she gets from whatever litigation is involved with our deaths (cause most likely if we're both dead it's cause we're both in some sort of freak accident). It's not a huge amount of money, but it's enough that certain members of Kristin's family might try to take Julia in order to get it. By making it so that whoever takes Julia won't get her money (while also providing a means for her to be able to travel to see family members who live out of state), we're making it more likely that no one will contest her guardianship.

And that's all we can do until I get legal guardianship (we're working on that, but there's a case at our supreme court right now that will decide the usefullness of such a thing for us) and we're planning on moving in a few years so that I can adopt. I think the biggest thing we did for the safety of our family is make certain that our donor is the kind of person we were hoping he would be. (ie, not the kind of person who would take us to court over the child)

But, you really do need to get informed on the kinds of laws and case precedent in MA before making your final decision. Just know that lawyers tend to get very paranoid about KDs (after all, that's what we pay them to do) so get more than one opinion and do some hard thinking of your own. and this sounds cold, but you might even want to try to get an opinion from someone who knows the law but wouldn't be making money off of you if you went a certain way.

eryn said...

We are using a well known lawyer in Noho to do our contract, and eventually our co-parent adoption. It's true that the contract is not legally binding, but it is a good first step in making all your intentions be known. If you want more info about our lawyer email me: