Do you need a donor agreement?

    Do you need a donor agreement?

    If you are hoping to enter into a donor arrangement, either with someone you know well or someone you have met solely to conceive a child, something you are bound to consider is whether to put a donor or ‘pre-conception’ agreement in place.

    Donor agreements can take many forms; from being a piece of paper on which you have informally jotted down a few ideas to a formal document drawn up by a professional and signed by the parties as a deed.

    What is appropriate for you will depend on your circumstances and ultimately your intentions in terms of how the arrangement will work. UK law provides for the fundamental rights and responsibilities of the adults involved in a donor arrangement, but it may not reflect your wishes in respect of who will be a legal parent of your child and have parental responsibility.

    Seek legal advice before conception

    It is therefore always sensible to seek legal advice before conception not only to determine the position but to identify any opportunities that may exist to bring the law into line with your plans and ensure that it is as protective of your arrangement as possible.

    Once you have established how the law works, you may wish to formalise your arrangement by way of an agreement, which each of you signs before you start trying to conceive.

    Whilst any document you put in place cannot in itself change the legal position (i.e. it cannot extinguish someone’s legal status in respect of a child), it can bolster the basic foundation that the law already provides or, where the law is in conflict with your intentions, it can set out the roles each significant adult will play and articulate how things will work in practice within your particular arrangement. 

    The benefits of such a document manifests in stages

    On a basic level, it is helpful to record in writing everyone’s circumstances, wishes and fundamental points of agreement before conception takes place.

    On a practical level, this exercise by nature facilitates the discussion of topics which may be more difficult to address further down the line, once the child has arrived and a potential issue has arisen. If any significant points are in contention between the parties they will likely be realised at this point, which provides a perfect opportunity to work through them (or to make the decision not to proceed on that basis). 

    On a future-proofing level, an agreement will serve as a useful aide-memoire, should queries crop up throughout the child’s life as to what was agreed and visualised. 

    Furthermore, a thoughtfully prepared agreement which has been entered into by all the parties before a child is conceived could be used as evidence of everyone’s circumstances and intentions at that point in time. This may prove particularly significant if the arrangement turns sour and a court becomes involved, since it is a useful tool for a judge to consider in tandem with the wider legal position.

    In summary, it is never a bad idea to put an agreement in place – whether informally or formally – to set the foundations of your arrangement and to ensure you have considered and agreed on the pertinent points. What is right for you will depend on the nature of your arrangement and how the law corresponds with your plans.  

    To find out more about donor agreements, how the law works in your particular situation and your options, please contact our specialist consultant solicitor, Nicola Scott.

    For legal advice on fertility and surrogacy.

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