Donor Agreements, Parental Rights, and Same Sex Divorce: What to Know

A donor agreement may protect a non-biological parent’s rights in same-sex marriages in California. However, to make sure both parents are given parental rights, additional steps are recommended. In this article, we primarily discuss California laws regarding parental rights. If you live in another state, please be sure to read the section of this article titled “Know your state laws.”

Paths to parenthood for gay and lesbian couples

Depending on your specific relationship, there are several paths to parenthood. Here’s a brief rundown of your options.


Adoption is fairly straightforward, as the legal process has been around for a long time. Same-sex couples in California may choose adoption if they want to have a child. They go through an adoption process in which their name is placed on a list, and they receive a call when a child becomes available for adoption. This is a fairly invasive and time-consuming process, but in the end, many couples find it completely worth every hurdle and headache.


If you’re in a same-sex couple and don’t want to go through a long adoption process, you may explore surrogacy options. Surrogacy is a method of reproduction in which you and your partner work with a surrogate who will carry a fetus to term. Upon birth, you and your partner may need to formally adopt the child. Male same-sex couples often choose this path.

Assisted reproduction

In the case of female same-sex couples, one person may be willing to get pregnant through in vitro fertilization. In this process, sperm is injected into the egg of one partner. Many people find this to be a wonderful path because one spouse is a biological parent. 

What is a donor agreement?

A donor agreement is a contract between a person donating an egg or sperm, or someone carrying a fetus, and the partners looking to parent a child. The agreement lays out the rights and responsibilities of each party with the provision that the (often same-sex) couple will parent the child. 

Potential pitfalls of a donor agreement

In the majority of cases, people abide by their agreements. However, in limited circumstances, some donors go back on their promises. This creates a legal nightmare for everyone involved. 

For example, if you and your partner have agreed with a female surrogate that she will carry a fetus for you, you’d hope that the agreement would stand. But if the surrogate decides, upon birth, that she doesn’t want to give up the child, that could create a legal quandary. Courts don’t have to give your donor agreement heavier weight.

In another example, if you and your spouse agree that your spouse will contribute an egg or sperm and be a biological parent, you have no parental rights. If you execute a donor agreement, courts may give that document some weight, but they are not required to strictly enforce it. This means that in the event of a divorce, you could end up without any parental rights to a child you may have helped raise for years.

Protective options

Luckily, a donor agreement isn’t the only option available to same-sex couples. While you may not be thinking about divorce, you need to protect yourself and your relationship with your child. One of the best ways to ensure your rights are protected is to adopt.

Often called a second-parent adoption, this process legally formalizes your parental rights with your child. If you are not a biological parent, you may want to take this extra step. Is it tedious? Yes. Is it one of the best ways to protect your relationship with your child? Absolutely.

You could also seek a parentage action. Under the California Family Code, parentage actions ask the court to recognize your parental rights. You may acknowledge your parental relationship by signing a voluntary declaration of parentage

Courts may also establish your parental rights through a process called parentage by estoppel. This is commonly done when a parent isn’t biologically related to their child and has not gone through a formal adoption process. If you have always treated your child as your own and openly behaved as though you’re their parent, a court may grant you parentage by estoppel.

Know your state laws

Does a donor agreement protect your parental rights? In short, not always. As discussed above, the donor may “change their mind,” putting you at a great disadvantage – and the court may not give your position heavier weight than that of the donor or surrogate.

The protective options discussed above – second-parent adoption, parentage action, and parentage by estoppel – are not available in all states. In fact, same-sex couples still have fewer rights in many states. As such, you should explore all legal options available to you to help establish and protect your parental rights with your child.

This is a complex family law matter, but not every situation requires a family law attorney. If you and your partner are struggling with parental rights issues or are headed for a split, Hello Divorce can provide you with expert advice and information. For example, in some cases, you may be able to regain custody if you have finalized a divorce with your partner and the outcome you sought was not reached.

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Founder, CEO & Certified Family Law Specialist
Mediation, Divorce Strategy, Divorce Insights, Legal Insights
After over a decade of experience as a Certified Family Law Specialist, Mediator and law firm owner, Erin was fed up with the inefficient and adversarial “divorce corp” industry and set out to transform how consumers navigate divorce - starting with the legal process. By automating the court bureaucracy and integrating expert support along the way, Hello Divorce levels the playing field between spouses so that they can sort things out fairly and avoid missteps. Her access to justice work has been recognized by the legal industry and beyond, with awards and recognition from the likes of Women Founders Network, TechCrunch, Vice, Forbes, American Bar Association and the Pro Bono Leadership award from Congresswoman Barbara Lee. Erin lives in California with her husband and two children, and is famously terrible at board games.