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Thinking about it and making agreements

Written donor agreements are not legally binding, but they are an important tool for ensuring that everyone involved talks through and agrees on the key issues, especially around how you will all negotiate any changes that occur over time.


Written agreements are strongly advised

It is a good idea for you (and your partner, if you have one) to make a written agreement with the prospective mother/s, even though it is not legally binding. Australian law does not allow you to make a legally-enforceable contract or agreement about a child, 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 a 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 agreement a useful a 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 certainly 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 the children you help conceive might feel if they read your agreement, as they may do later in life. The most valuable thing an agreement can do is encourage you all to sit down and talk about the important issues. Your agreement should clearly state what each person’s role will be (including your partner, if you have one), and who are the child’s parents. It should clearly state 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 case 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 – the parent/s, you, your partner, and the 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 counsellor 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 you be known to the child? Some donors are happy to be introduced when the child is 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 an ongoing relationship or contact with their donor.
  • Will you all be open about your role as donor with friends, family and acquaintances, including those you have in common? Bring this up early, before any of you mention the issue to others. Remember that when a child knows your identity and is old enough to talk, the adults involved will lose control of who has this information! There is strong evidence that any sense of secrecy about children’s donor origins is not in children’s best interests.
  • Do you want to tell or involve your family of origin? This is a major issue for many donors, as previously discussed under ‘Your emotional journey’.
  • If you have a partner, what role might he or she play? We also discuss this above.
  • What language will you all use around your role, and that of your partner if you have one? How will you speak with the children about this? How will you describe your role to other people? See above under ‘The F-word’.
  • What processes for donating are you open to? Make sure you understand what is involved with each option, described above, and the health screening required, including if you need to re-test. See above, under ‘The process of donating’.
  • What if the mother/s need to use IVF? Do you have any feelings about that, for example what choices the mother/s might make around unused embryos at the end of the process?
  • Are you open to donating for more than one child? And for either mother to be the birth mother?
  • How will you feel there is a likelihood of an 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 you have with the mother/s during the pregnancy? Would the mother/s want you to have any role (and would you want to) during the birth? How soon will you meet the child? What role or contact might you have during early infancy? Will you have any say in the naming of the child?
  • What kind of time do you want to spend with the family? Do you want occasional or regular contact? Will it involve family celebrations and birthdays, school or social activities? Will the amount and nature of the contact you have with the family change over time?
  • Will your contact always be with the whole family, or sometimes just with the children? If the latter, are you interested in – and would the mother/s ever be open to the possibility of – the children staying with you 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 you want to make a financial contribution (and the mother/s are open to this), 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 to give to the family, and what might the mother/s want from you?
  • Do you want – and are the mother/s open to you having – any say in the decisions about their children’s lives? For example, will they ask for your input about things like education choices or religion? What about health care or other aspects of their children’s upbringing?

Make sure you understand the law in regards to who are the child’s legal parents, who is listed on the birth certificate, and the legal requirements for listing donor information with the Registry of Births, Deaths and Marriages. Discuss whether you all want to seek court parenting orders by consent.

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 the child is born.

Consider starting slow

For most people, this is all very new territory. If you do not have children yourself, you cannot know what it will be like when this child is born, and how you will feel. That goes for you and your partner if you have one, and the mother/s. Talk to parents of babies and young children. There is no greater change for many people than when children come into their lives.

When thinking about the kind of involvement you might have before and after birth, is important to consider the nature of pregnancy, birth and early infancy, and the mother/s 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 such as 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 kinds of support at different times.

One option that works for many is to start with a lower level of contact (however you all 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. Your role can potentially be very different when a child is a toddler or preschooler to when they are newborn.

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