Introducing Sperm Donation Agreements
A sperm donation agreement is a legally binding contract that delineates the rights and responsibilities of both the sperm donor and the recipient. Found in some states, it’s one of many forms that are designed to address the issues that may arise from sperm donation. Sperm donation agreements help to allay concerns that both the donor and the recipient will have about legal rights, such as whether the donor will ever be responsible for child support payments or whether the result of the donor’s sperm donation might be entitled to an inheritance someday.
For instance, people occasionally worry that if they have a baby through a sperm donation , the donor might try to come back into their lives or the child’s life. However, sperm donation agreements help to alleviate those concerns by specifying that the donor will relinquish all parental rights to the child. Because the sperm donation agreement is reviewed by the court, it is possible that the parties might also call on the State to enforce the contract if necessary.
It’s important for both donors and recipients to realize that a sperm donation agreement does not guarantee that the intended recipient will get pregnant. There are many reasons why a donor may produce low quality sperm or no sperm at all and reproductive failure is not considered a legally acceptable excuse.
Legal Nature of Sperm Donation Agreements
In addition to providing clear parameters for the medical procedures involved, sperm donation agreements are designed to protect both the recipient and the donor from future parentage disputes. In particular, when a sperm donor and recipient execute a written agreement that serves certain specified purposes, as discussed above, California law provides that a donor is deemed not to be a natural parent of a child conceived by artificial insemination with his sperm. In other words, executing a donation agreement before the artificial insemination occurs will protect the sperm donor from being named as the child’s legal parent should the recipient wish to seek support or visitation rights from the donor when the child reaches adulthood. In such a scenario, the child can only be deemed to be parentless, and donations of that child’s parentless blood are eligible for state funding under the California Probate Code, § 215.
At the same time, sperm donors should also take the time to get comfortable with the fact that they are waiving the right to parent the resulting child. Presumably, the decision to become a sperm donor is made with the understanding that the resulting child will be raised by the recipient. The donation may be made for a variety of personal reasons, such as to help a family in need, to keep another family member from undergoing painful procedures, or for purely monetary motivations to help donors make ends meet. There are many valid reasons a sperm donor will choose to donate sperm. While there is nothing wrong with any of those motivations, the donor should be aware of the issues that could arise.
Even with the protections put in place by sperm donation agreements, biological fathers of donor-conceived children have been sued in excess of $100,000 in some Illinois courtrooms. These issues are usually dealt with in the divorce context because the courts treat a sperm donor as the de facto father of the child until jurisdiction over the case is taken from the court of the child’s birth and transferred to the divorce court. If a sperm donor seeks to avoid the cost of support payments in case the recipient seeks to have him take on the financial responsibility for the resulting child, he should discuss this with an attorney to further understand the risks involved.
Key Components of a Sperm Donation Contract
While not required under New York law, if a couple wishes to use an anonymous sperm donor at a sperm bank or private sperm donor, and they are not having the donor (or mother) adopt the child, then a contract is needed with the following key elements:
- Consent and Waiver of Objections: The couple can enter into this agreement with the donor and require that he not have any objections and not seek rights as a parent, as well as that he bears no financial obligations. If negotiating a contract with a sperm bank, it will usually forward a consent and waiver of objections form that the donor will need to use.
- Disclosure of Personal Information: The couple wishes to know enough personal information about the donor to enable them to provide medical and genetic information to the child when he or she is old enough. The agreement should address the disclosure of this information, and whether there is a chance that the child will have contact with the donor in the future.
- Confidentiality and Anonymity: Likewise, it is often important for the prospective parents to have some guarantees of the donor’s anonymity. Third, the contract can also address whether the child is entitled, when he or she turns 18, to direct contact with the donor.
- Financial Responsibilities: It may also be important that the donor undertake to bear no financial responsibilities for the child, and the contract needs to delineate the financial responsibilities and obligations of each person involved. Some components of the foregoing are already addressed and required in the New York statutes, but it is important to discuss these provisions with a knowledgeable attorney who can guide you through the process.
State-Level Laws and Regulations
State laws regarding sperm donation differ, which affects not only the most appropriate content for the sperm donation agreement, but also whether that agreement should be in writing. In some states in which codified law tracks the common law, such as in Pennsylvania, there is no requirement that a sperm donor execute a contract. In California, however, the sperm donor must enter an agreement with the recipient, and this agreement must comply with the Uniform Parentage Act (UPA). Similarly, other states require compliance with the UPA or otherwise have their own legislations that must be followed. As of the date of this blog post, forty-six states have enacted the UPA. (The states that have not done so are New York, Michigan, Massachusetts, North Dakota, Wisconsin, and Utah.) The only state not to have enacted the UPA, North Dakota, generally requires written contracts with sperm donors.
Creating a Sperm Donation Agreement
In addition to addressing the foregoing issues, an effective sperm donation agreement should contain provisions that cover the governance of any administrative issues that might arise, including issues such as how the parties will communicate with each other, and the frequency and form in which communication will take place. What happens if there is a problem with a shipment, or some other business or clerical issue? What recourse will a party have in the event of a dispute? If the parties would like to maintain a form of physical contact, should the agreement provide for this? The answer to these questions and others specific to the parties’ circumstances will vary from agreement to agreement and need to be determined on the facts of each case .
Given the complexities involved in sperm donation agreements (and the prospect that a defect in the agreement could lead to litigation years in the future), in addition to the advice of medical professionals, the parties are well advised to seek the advise of counsel to assist them in drafting a comprehensive agreement that meets their particular needs.
Typical Conflicts and Resolutions
One of the most common disputes between a sperm donor and a recipient regarding a donation is parental rights over any child conceived through that donation. For example, in the case of In re M.P., 116 Ohio St.3d 394, 879 N.E.2d 1101, (Ohio Supreme Court 2007) a sperm donor sought visitation rights over a child conceived by a sperm donation he provided to the parents a year earlier. The Supreme Court, noting that Ohio law and its previous decisions discouraged deposit accounts from being construed as sperm banks, held that "a sperm donor who has donated sperm to a woman with whom he has no preexisting sexual relationship does not have parental rights with respect to a child conceived through artificial insemination of the donor’s sperm."
Another dispute often arises over whether the sperm donor can contact the child. For example in In re Paternity of Baby Boy W., 788 P.2d 1218 (Kan. 1990), the sperm donor requested visitation rights. The Kansas Supreme Court held that the sperm donor was not entitled to visitation. See also Mullin v. Meiers, 345 N.W.2d 737 (Iowa 1984). Several state legislatures have codified the case law. For instance the virility of the consent to artificial insemination statute, various states expressly prohibited a sperm donor from obtaining the legal rights of a father. See for example, Arizona Revised Statutes §25-218, California Family Code §7613, Minnesota Statutes Section 257.57, Kansas Statutes Annotated § 23-2206, and Oklahoma Statutes Title 10 § 7700.3 and 7700.4. The Delaware Uniform Parentage Act includes a prohibition on an artificial donor asserting parental rights. See 13 Del. C. §8-601(c).
Some disputes arise over disclosure of medical information. Two mothers who conceived twins by sperm donation disputed over who would disclose a hereditary disease that was discovered by the donating father after conception. McCulloch v. West, 810 A.2d 1 (R.I. 2002). In that case, the Rhode Island Supreme Court noted that the sperm donor had agreed to keep the nondonor parent regularly advised of information about the health of the child. The Kansas Supreme Court addressed the issue of medical disclosure by a sperm bank by explaining that the state statute that notified mothers of a hereditary disease was not intended to impose liability on sperm donors. See A.M. v. Genesis Health Clubs of Kansas, Inc., 900 P.2d 1156 (1995).
Certain provisions in a sperm donation contract can help clarify these issues.
Conclusion: Legal Protection During Sperm Donation
A well drafted sperm donation agreement should be part of any donor and recipient’s plan(s). All parties’ interests are better protected and the role of each party is both clearly spelled out . While sperm donation that is completed anonymously can be an attractive option for both parties, there are risks and complications that are avoided when there is an agreement in place. Parties considering sperm donation should consult with legal counsel to ensure that the process will fit into their personal family planning plans.