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Talking with a prospective donor, making agreements

It’s very exciting to talk about making babies, but it can also be challenging. It’s critical not to dodge the difficult issues, especially around whether being a donor is what he really wants, or if he wants to be a dad (if he isn’t already). See Finding a donor, thinking it through and the discussion below.

Talking with your known donor

Be very clear about what you want before you begin negotiating with a prospective known donor. This is especially important if you are single. Couples can talk it over between themselves; single women can use friends or therapists. It can be hard for single women to keep their boundaries, especially if your donor is also single. The dynamic can feel like a heterosexual relationship, to yourself and others. Single women are often more open to co-parenting or expect more involvement from a donor. This choice is legitimate, but be clear it is what you all want. Ask yourself whether you might feel differently down the track, if you partner with someone you want to parent with.

When you begin talking with a prospective donor, remember that you have probably been thinking about this for a lot longer than he has. He will appreciate having clarity about what you want, in order to think through what would work for him. Take it slowly, and give him time to get over his initial response (often awkwardness, even if positive). If you are partnered, try to both be involved in all your negotiations; it is easy for the prospective non-birth mother to feel marginalised.

We have produced a sheet like this one for donors. Encourage your prospective donor to read this and other materials early in your discussions. Resist the temptation to gloss over differences, or agree to things you don’t really feel comfortable with because you like him, because you are so grateful for his assistance, or because you are desperate to start making a baby. If he has very different ideas to you, take time to reflect before responding. It is critical that you all feel good about what you are agreeing to, before you begin trying. Remember there are other possibilities, including a clinic-recruited donor. It is also important (if perhaps hard) to ask your donor to take a sperm test before you go into deeper negotiations, as problems are not uncommon (see ‘Conception with a known donor or co-parent’, above).

Making an agreement

It is a good idea to make a written agreement with your donor (and his partner, if he has one), even though it is not legally binding. Australian law does not allow you to make a legally-enforceable contract or agreement about a child, whether written or verbal. Some people make their agreement, then put it in a drawer and never look at it again. Some revisit it when they conceive, when their child is born, when it comes to trying for any subsequent children, and when any major life changes happen that have possible implications for the relationship (such as someone moving interstate or overseas). Many people find their agreements to be an extremely useful tool, and a record of what they wanted and agreed to at the time. And in a conflict, a written agreement demonstrates your intentions, which might be one (but not the only) factor a court would consider.

Most people make agreements that are legally clear in language, but also express their feelings. Think about how your children might feel if they read it, as they may do later in life. The best thing an agreement can do is encourage you all to sit down, talk about and reach agreement on the important issues. Your agreement should clearly state what each person’s role will be (including the donor’s partner, if he has one), and who are the child’s parents. It should also state clearly what all of your intentions are in making the agreement.

The most important part of the agreement relates to how you will negotiate changes, and what you will do in the event of conflict. The only certainty in life is change. Children change, people’s circumstances change, and so do their feelings. The feelings of everyone involved – you (the parent/s), your donor (and his partner if he has one) and your children as they grow – will inevitably change over time. This does not mean that your arrangements will also shift, although they often do. Some donors become much more involved in family life, for example, while others are less so than originally intended. The key is to agree on clear processes to negotiate change, and to deal with conflict (such as through a counselor or mediator), so that whatever happens you can stay out of court.

Specific topics to discuss

People’s agreements vary enormously, but there are some key issues to consider, including:

  • Will your donor be known to the child? Some donors are happy to be introduced to the child when they are old enough to show an interest, but have no other contact. There is strong evidence that children fare best when their parents are open about their donor origins from early in life, whether or not they have a relationship with their donor.
  • Will he be open about his role with his friends and family, and with your mutual friends and acquaintances? Bring this up early in your negotiations, before mentioning him as a possibility to others. Remember that when your child knows his identity and is old enough to talk, you will lose control of who else has this information! There is strong evidence that any sense of secrecy about children’s donor origins is not in children’s best interests.
  • Does your donor want to tell or involve his family of origin? This is a major issue for many donors. A lot of gay men, for example, have had to deal with their parents’ feelings (on coming out) that they are unlikely to be grandparents through them. Their son being a donor might be an exciting possibility (or a real challenge) for them to deal with. Think about what contact with his family you are open to. This can be an added complication, and may be something you don’t want, especially if they seem homophobic. But remember that people can change (especially when it comes to children), and it is potentially wonderful to have more loving grandparents, aunties, uncles and cousins.
  • If your donor is partnered, what role might his partner have? Are you negotiating with both of them, or only with your prospective donor? Remember that if you use a clinic, they might require your donor’s partner to attend counseling and consent to the donation. If your donor has some contact with your family, this is likely to impact on his partner, at least to some extent. Would you be open to his partner’s contact with the family increasing over time, if he or she wants this? If he is single and partners, or re-partners, will you be open to his new partner having contact? Does your donor have children? Does he plan to? Will the children know about each other, and perhaps have contact?
  • What language will you all use around his role, and that of his partner if he has one? How will he speak with the children about this? Some women are open to their donor being called ‘father’ or ‘Dad’, when their role is not that of a parent. Some donors want this; others want children to use their first names, or to call them (and perhaps their partner) ‘Uncle John’ and so on. Men might refer to themselves as a child’s donor, or donor dad, or father. It is important to be agree on what language you will all use, in what context, and exactly what you all mean by it. Language is extremely powerful, in terms of the feelings and expectations of everyone involved (not least your children), and also in the wider community. It is worth revisiting this issue when you conceive, and when a child is born, as people’s feelings about this issue often change, either way. Remember, it is far easier emotionally to give (for example, to decide later that you are comfortable with the name ‘Daddy’) than to take away.
  • What processes for donating is he open to? Explain what is involved with each option, including how available he will need to be if you are home inseminating with fresh sperm. Also explain the testing required, including if he or his partner is exposed to a risk of sexually transmitted infection.
  • What if you need to use IVF? Does he have any feelings about that, for example if there are unused embryos at the end of the process?
  • Is he open to donating for more than one child?
  • What will you do if there is a likelihood of your unborn child having a profound disability or serious medical issue? People can have very strong, and different, feelings about issues like this.
  • What contact might he have with you during the pregnancy? What role, if any, will he have during the birth? How soon will he meet the child? What role or contact might he have during early infancy? Will he have any say in the naming of your child? Do you want any part of his name in their name?
  • What kind of time do you want him to spend with your family? Do you want occasional or regular contact? Will it involve family celebrations, birthdays, school or social activities? Will
    the amount of contact and nature of the contact change over time?
  • Will his contact always be with the whole family, or sometimes just with the child/ren? If the latter, would you ever be open to the possibility of them staying with him overnight? At what age? Talk to other parents about children’s capacity to be away from their home and parents at different ages, before exploring these issues.
  • Who will be financially responsible for the child? If your donor wants to make a financial contribution (and you want this too), would this be regular or ad hoc? What about inheritance, superannuation, insurance and wills?
  • What kind of support (other than financial) and involvement, if any, would you like from him, and what does he want to give?
  • Will he have any say in the decisions about your children’s lives? For example, will you ask for his input about things like education choices or religion? What about health care or other aspects of your children’s upbringing?
  • Since the passing of the ART Act, you (and your partner if you have one) are your child’s legal parents, and only you can be listed on the birth certificate. You cannot list the donor as ‘father’ – this is making a ‘false declaration’. The donor’s role is recognised through his listing with the Victorian Registry of Births, Deaths and Marriages (BDM). If you use a clinic to conceive, his name is listed in the Central Donor Register. If you home inseminate, he is listed on the child’s birth record (but not on the certificate). Ensure your prospective donor understands this, and perhaps include it in the agreement to ensure it is clear.
  • As we have said, the most important thing to agree on is how to negotiate change and any conflict. You might want to make some agreements on hypothetical scenarios, such as what you will do if someone wants to move interstate or overseas. It is worth all the ‘parties’ seeking separate legal advice before making decisions or attempting conception.

    Commit seriously to the agreements you make in good faith, but acknowledge the reality that people’s needs, feelings and circumstances change. It is important to finalise your agreement before beginning to attempt conception; some people do not, then discover they still had very different expectations down the track. However, it is also a good idea to revisit the decisions you made after your child is born.

    Consider starting slow

    For most people, this is all very new territory. No matter how many children you have had in your life previously, if you have not had your own children before, you cannot know what it will be like, and how you will feel. That goes for both you and your donor/s or co-parents. Talk to parents of babies and young children. There is no greater change in most people’s lives than when children come into their lives.
    When thinking about the kind of involvement you might want from your donor before and after birth, is important to consider the nature of pregnancy, birth and early infancy, and your choices around issues like birth, breastfeeding and sleeping. The Australian National Health and Medical Research Council recommends that children are exclusively breastfed for the first six months, and continue to breastfeed until at least two years old. Of course, every family makes their own choices around issues like breastfeeding, for example, and not all birth mothers can breastfeed, or want to short or long-term. Everyone involved in this process will have their own particular experiences of the exhausting, exhilarating, emotional and sometimes difficult processes of trying to conceive, pregnancy, birth, establishing breastfeeding and early infancy. Everyone will need different support at different times.
    One option that works for many is to start with a lower level of contact (however you define that – perhaps a short fortnightly visit) to begin with, but be open to that increasing over time as you all learn and explore your new roles. Roles can be very different when a child is a toddler or preschooler to when they are newborn. Bear in mind, too, that it is much easier (both emotionally and legally) to increase than to decrease the amount of contact you have with your donor.

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We are a volunteer community organisation based in Victoria, Australia. We support and promote equality for ‘rainbow’ families (parents and prospective parents who identify as lesbian, gay, bi, transgender or intersex, and their children).