When people are considering a donor arrangement, it is important that everyone involved has a shared understanding of their roles, expectations, and intentions.
A donor agreement is a written document developed before conception that supports these conversations and records what each person understands and agrees to.
While donor agreements are not legally binding, they play an important role in clarifying expectations from the outset and may be used as evidence of intention if disputes arise.
Clarifying expectations and roles
A written donor agreement provides a structured framework for discussing and recording each person’s intentions and understanding of their role in the child’s life prior to conception.
The process of developing an agreement encourages open and transparent communication and helps each person clarify their own expectations.
Beyond outlining the donor’s involvement, a written agreement creates space to discuss important issues such as the nature of the donor’s relationship with the child, expectations for contact, financial responsibilities, and decision-making role. It may also consider other topics such as what health screenings are expected before conception occurs.
A donor agreement can also help people prepare for situations where things do not go to plan. For example, if attempts to conceive are unsuccessful, people may need to consider alternative pathways such as moving from self-insemination to IFV or a different intended parent carrying the pregnancy. Thinking through these possibilities in advance can help manage expectations and reduce stress if plans change.
Addressing these topics early can help prevent conflict, disappointment, or misunderstandings later.
James was preparing to donate sperm to Kerry and Alisa. During discussions about their agreement, James realised he wanted to be a co-parent. This aligned with what Kerry and Alisa wanted. Working with a facilitator, they explored what each of them wanted and developed an agreement outlining James’ role and involvement.
Jeremy’s partner Kai donated to Katie and Luna. Both couples agreed that the men would take non-parenting roles and see the child every four weeks, but other details were not discussed. When Katie and Luna later asked Kai to donate again, Jeremy felt distressed and excluded because he felt it was his ‘turn’. A more detailed written agreement may have helped clarify expectations and protect the relationship over time.
Evidence if legal disputes arise
Without a donor agreement, families may be exposed to legal and relational complications if expectations change, or disagreements emerge.
Donor agreements are not legally binding. However, if a legal dispute arises, courts will closely examine what each person intended at the time of conception. A donor agreement is one tool courts may consider when assessing intention, alongside other factors such as actions taken before conception, during pregnancy, and after birth.
Without a written agreement, courts may rely more heavily on testimony and retrospective interpretations, which may not accurately reflect what everyone originally wanted or agreed to.
It is important to note that the role and weight given to donor agreements depend on the specific circumstances of each case. This is an evolving area of family law, and some family arrangements have not yet been tested in court. Even so, donor agreements remain a valuable source of evidence if disputes arise.
This content was adapted from a discussion paper by Better Pride and the Centre for Better Relationships. To read the paper in full, click here.