A known donor agreement is a written contract, signed before conception, in which a donor and the intended parents say whether the donor will be a legal parent. In California, that writing carries real weight. Under Family Code section 7613, a pre-conception agreement can decide whether a known donor is treated as a parent. It is still not a court judgment.
Most people facing this question are partway into something personal. A friend or relative has offered to help a couple or a single person have a child. Sometimes the donor is meant to stay a warm, distant figure, and sometimes everyone hopes to raise the child together. The parents and the donor want to know whether the plan they agreed to over dinner will hold up years later, after a breakup, a move or a disagreement about the child. They also want to know where the non-biological partner stands.
This article walks through how California parentage law treats known donors, how co-parenting donors become legal parents, and where the birth parent's spouse or registered domestic partner fits.
What a Known Donor Agreement Does — and Does Not — Do Under California Law
A known donor agreement, also called a donor agreement or sperm donor agreement, records each person's intentions about parentage, custody and support before a child is conceived. A known donor is someone the intended parent knows personally, often a friend or family member. An anonymous donor is a clinic or sperm bank donor with no personal relationship to the family.
The agreement matters because California's assisted reproduction statute, Family Code section 7613, turns on a written agreement signed before conception. Depending on how the sperm was provided, that writing can be the fact that decides whether the donor is a parent. (Assisted reproduction means conception by any method other than sexual intercourse.)
The agreement also has limits. It is a private document, not a court order. It does not bind a California superior court on custody or child support. On its own, it does not give a co-parenting donor the status that a judgment or a filed Voluntary Declaration of Parentage provides. A court asked to decide who a child's parents are will read the agreement as evidence of what everyone intended. It will then apply the statutes, including the presumptions of parentage described below, to the whole set of facts.
How California Parentage Law Treats Sperm Donors
Family Code section 7613(b) separates donations made through a licensed physician or licensed sperm bank from donations handled privately. The two paths follow different rules.
Through a licensed physician or licensed sperm bank. The statute reads:
"The donor of semen provided to a licensed physician and surgeon or to a licensed sperm bank for use in assisted reproduction by a woman other than the donor's spouse is treated in law as if the donor is not the natural parent of a child thereby conceived, unless the donor and the woman signed a written agreement before the conception of the child, that the donor would be a parent."
On this path, the default is that the donor is not a parent. A pre-conception written agreement can reverse that default if everyone wants the donor to be a parent.
Not through a physician or sperm bank. When sperm is handed over directly, as in home insemination, the default reverses. Under section 7613(b)(2), the donor is treated as not a parent only if one of two things is true:
- the donor and the woman signed a written agreement before conception that the donor would not be a parent, or
- a court finds, by clear and convincing evidence, that the child was conceived through assisted reproduction and that before conception the woman and the donor had an oral agreement that the donor would not be a parent.
Clear and convincing evidence is a demanding standard, well above "more likely than not." Relying on an unwritten understanding is therefore a hard position to prove. On the direct-donation path, a signed pre-conception agreement often does the heaviest legal lifting.
The two paths at a glance. The table below summarises the section 7613(b) rules described above.
| How the sperm is provided | To a licensed physician and surgeon or a licensed sperm bank | Not through a licensed physician or licensed sperm bank |
| Default outcome | Donor is treated as not a parent | Donor is treated as not a parent only if a qualifying agreement exists |
| What changes the outcome | A written agreement signed before conception that the donor would be a parent | A written agreement signed before conception that the donor would not be a parent, or a court finding, by clear and convincing evidence, of a pre-conception oral agreement that the donor would not be a parent |
| Role of the pre-conception writing | Needed only if the donor is meant to be a parent | Often the key document if the donor is not meant to be a parent |
Presumptions of parentage. Family Code section 7611 lists situations in which a person is presumed to be a child's parent, meaning the law starts from the assumption that the person is a parent. One presumption, in section 7611(d), applies when a person "receives the child into their home and openly holds out the child as their natural child." A known donor who lives with the child part of the time, uses a parent's title, or presents the child to others as their own may come within that presumption. Under section 7612(a), most presumptions can be overcome only by clear and convincing evidence. When presumptions conflict, the one "founded on the weightier considerations of policy and logic" generally controls.
The consenting intended parent. Section 7613(a) addresses the other adult in the picture. When a woman conceives through assisted reproduction with donor sperm or eggs "with the consent of another intended parent," the statute treats that consenting intended parent as a parent in law. The section is not limited to husbands, and Family Code section 7602 adds that the parent and child relationship "extends equally to every child and to every parent, regardless of the marital status of the parents." California's parentage statutes use gender-neutral terms and apply to same-sex couples and LGBTQ families on the same footing as anyone else.
Co-Parenting Arrangements: When the Donor Is Intended to Be a Parent
A co-parenting arrangement is the opposite of a donor-only plan. The donor is meant to be a legal parent, with custody rights and support duties, alongside the birth parent and sometimes the birth parent's partner. For readers who planned a family with a close friend, this is often the scenario that feels most natural and is least settled on paper.
A co-parenting agreement records that plan. Unless a filed declaration or a judgment backs it up, though, the donor's legal status can stay uncertain until a dispute forces a court to decide. California offers more than one way to settle the question in advance.
Voluntary Declaration of Parentage. A Voluntary Declaration of Parentage (VDOP) is a signed form, governed by Family Code sections 7571 through 7577, that establishes parentage without a court case. Under section 7573(a), it may be signed by:
- an unmarried woman who gave birth and another person who is a genetic parent, or
- a married or unmarried woman who gave birth and another person who is a parent under section 7613 of a child conceived through assisted reproduction.
The signatures must be notarized or witnessed. Section 7571 requires hospitals to offer the form before the birth parent leaves the hospital in these situations. Once filed with the California Department of Child Support Services, a valid declaration, unless an exception applies, "is equivalent to a judgment of parentage of the child and confers on the declarant all rights and duties of a parent." A VDOP has two signers, the birth parent and one other person, so it cannot recognize a third parent.
A parentage judgment. A parentage judgment is a court order entered in an action under the Uniform Parentage Act, which begins at Family Code section 7600. Under section 7630, a person seeking to be adjudicated a parent under section 7613 may bring that action at any time. A judgment binds the parties before the court. In the same case, the court can make custody and visitation orders, which makes this the most complete way to put a co-parenting plan on solid legal ground.
More than two parents. SB 274 (Stats. 2013, ch. 564) allows a court to recognize more than two legal parents. That rule now appears in Family Code section 7612(c) and is covered in detail below.
Can a Sperm Donor Claim Custody or Parental Rights in California?
The answer depends on three facts: how the sperm was provided, what was put in writing before conception, and how the donor has behaved since the birth.
- Physician or sperm bank, no agreement making the donor a parent. Section 7613(b)(1) generally treats the donor as not a parent, which bars a parentage claim.
- Direct donation with a signed pre-conception agreement that the donor would not be a parent. Section 7613(b)(2)(A) generally gives the same result.
- Direct donation with no written agreement. The donor is not covered by the donor rule unless a court finds a pre-conception oral agreement by clear and convincing evidence. The donor may then be able to claim parentage. A claim is stronger still if the donor has held the child out as their own under section 7611(d).
The risk is highest when no physician or bank was used, when no written agreement exists, or when the donor has built a parent-like relationship with the child. Even a strong agreement does not stop a court from weighing what actually happened after the birth, including a conflicting presumption.
The birth parent's partner can add a separate layer of protection. A partner who is a parent under section 7613(a) can sign a VDOP with the birth parent or obtain a parentage judgment. Some families also choose a second-parent or stepparent adoption, which creates a parent-child relationship through a separate court process. The firm does not take adoption matters, but adoption remains one of several legal routes, along with consent, presumptions, declarations and judgments.
Registered Domestic Partners, Same-Sex Spouses, and the Non-Biological Parent's Rights
Section 7613(a) is usually the starting point for the non-biological parent. A spouse or partner who consented to the assisted reproduction as an intended parent is treated in law as a parent of the child. That status comes from the statute itself and stands apart from any adoption. Family Code section 7613.5 provides optional statutory forms that satisfy section 7613's writing requirement. Form 1 is written for two married or unmarried people, one of whom will give birth. The forms carry a warning: "Signing this form does not terminate the parentage claim of a sperm donor." They also do not affect the presumptions in section 7611.
Marriage adds a second basis. Section 7611(a) presumes that a person married to the birth parent is a parent of a child born during the marriage. Under AB 205 (Stats. 2003, ch. 421), from January 1, 2005, registered domestic partners have the rights and duties of spouses. Spousal rules in California parentage law therefore generally apply to registered partners as well. Readers who have built property and history across both a partnership and a marriage may find the site's page on domestic partnership agreements a useful companion.
The harder cases involve timing. A couple may not yet have been married or registered at conception, or may have no written consent to point to. In those situations, a VDOP or a parentage judgment gives the non-biological parent the clearest record. It also avoids leaving the question to be argued later from memory.
What a Well-Drafted Known Donor Agreement Should Address
The central term is intent. A clear agreement says, plainly, whether the donor is meant to be a legal parent or to have no parental rights, duties or obligations. Under section 7613(b), that one sentence can decide the outcome.
Beyond that, a careful agreement typically deals with:
- Method of insemination. Physician or sperm bank, or direct, along with the parties' understanding of which section 7613(b) rule applies.
- Financial support. In a donor-only arrangement, the agreement usually says the donor will owe no support. In a co-parenting arrangement, it explains how support will be shared.
- Contact with the child. It says whether contact is planned and whether that contact is meant to create a parental relationship. This term bears directly on the section 7611(d) holding-out presumption.
- Changes in the family. It covers what happens if the intended parents separate or one of them dies.
- Custody and decision-making in co-parenting plans. Here, the agreement is often followed by a parentage judgment that includes a parenting plan.
Timing matters. Section 7613 looks to writings signed before conception, and an agreement signed afterward does not meet that requirement. A later writing may still be evidence, but it carries less weight.
The agreement also has firm limits. It cannot override a California court's authority to decide what is in a child's best interest, and parents cannot contract away a child's right to support. Couples drafting one often think about their wider financial picture at the same time, through cohabitation agreements for gay couples or a same-sex prenuptial agreement.
When the Legal Picture Gets More Complicated
SB 274 is where three-parent families start. Section 7612(c) provides:
"In an appropriate action, a court may find that more than two persons with a claim to parentage under this division are parents if the court finds that recognizing only two parents would be detrimental to the child."
The court considers all relevant factors. These include the harm of removing a child from a stable placement with a parent who has met the child's physical and emotional needs for a substantial period. A finding of detriment does not require a finding that any parent is unfit. Recognition of a third parent comes through a court proceeding. It does not follow automatically from a co-parenting agreement.
Relationship breakdown. When a co-parenting relationship sours, the lack of a judgment or a filed VDOP leaves everyone's position open. Without a court order, there are no custody or visitation orders to rely on. This is often the moment families first realize the agreement was never filed anywhere. A nonsignatory who has standing may challenge a VDOP, but under section 7577(d), generally no later than two years after its effective date.
Moving out of California. Under section 7573(e), California courts give full faith and credit to valid voluntary declarations from other states. Court judgments of parentage are generally recognized across state lines in a way a private contract is not. A family that may relocate has good reason to understand which documents it actually holds.
Death and inheritance. If a donor or an intended parent dies before or after conception, the child's inheritance rights can depend on whether parentage was legally established. This is where family law meets probate law, and the answer depends on facts beyond the scope of this article.
Prior relationship history. Section 7613(b) applies to a donor who is not the birth parent's spouse. A donor who is or was married to, or registered with, the intended parent may be in a different position, and the dissolution of that earlier relationship can affect the parentage analysis. When partners in a registered domestic partnership also marry each other, Family Code section 299(e) treats these as two relationships that a court may dissolve together in one proceeding.
If You'd Like to Talk Through Your Situation
Known donor questions come down to small facts that are easy to overlook. These include who handled the insemination, what was signed and when, whether the partners were married or registered at conception, and how the donor has acted since the birth. A consultation is the place to go through those facts against section 7613 and the presumptions in section 7611. It is also where to sort out whether a VDOP, a parentage judgment, or a multi-parent finding fits the family's plan. The firm practises California family law only and does not take adoption matters. Readers weighing an adoption can still raise the related parentage, custody or divorce question.
To talk through how California parentage law applies to your family, call LGBTDivorceLaw.com at (866) 343-4226 for a confidential consultation.