my partner and I married in 2008 prior to prop 8, she gave birth to our son in 2012 through a known donor, we are using same donor for baby #2. We have a donor contract relieving him of any rights/responsibilities. Does our marrige negate his paternity and responsibility as well as protect us? or do we need more? I am on our sons birth certificate as 2nd parent.
2 Answers from Attorneys
Although you don't expressly state it, I assume you are a same-sex female couple. In that case your marriage does not affect parental rights. The presumptions of parenthood in marriage apply only if the parent who does not bear the child is capable of impregnating the woman who bears the child. As for whether you need more legal protections than you have, it depends on how the donor "donates." I don't want to offend, but this is California and the variations on family and relationships and sexuality are nearly infinite, so I can't assume things and give you a valid answer. The quirk in the law is that if pregnancy occurs the way nature arranged for it, the legalities become complicated and it is more difficult, though not impossible, to remove the bio-father's parental rights and responsibilities. The safest bet in that case would be to treat it as a step-child and do the equivalent of a step-parent adoption. If medical intervention is used, then a good contract is enough.
If you didn't use a licensed physician for the insemination, then the donor has a presumption as the father.