What is a known sperm donor agreement?
A known sperm donor agreement is a legal contract between a known sperm donor and the recipient or recipients, typically one or two people, over the use of sperm for the purposes of becoming a parent. These agreements will typically include an acknowledgment from the donor that he does not have and does not intend to have any parental rights over any resulting children. These agreements should also address custody, visitation, and decision-making in terms of parenting. Just because a sperm donor agrees to accord himself the status of a donor only, does not mean that if a resulting baby is born to the recipient(s), that he will not, at a later time, seek to assert a relationship with the child and seek access or decision-making authority. A well-crafted known sperm donor agreement addresses this issue.
A known sperm donor agreement can also address issues such as whether the donor has an obligation to pay child support, whether the donor will want to have contact with the resulting child(ren), and if so, how often and in what manner that contact will occur. Because these agreements are private contracts between the donor and the recipient or recipients, there is no mechanism by which those terms can be enforced should the parties have a falling out. Accordingly, the better practice is to memorialize such contracts in a formal written agreement.
A known sperm donor agreement is distinct from a traditional sperm donor agreement . A traditional sperm donor agreement contemplates using the sperm of an anonymous donor. In those agreements, the sperm bank gives up all rights to his sperm and likewise, foregoes any parental rights with respect to any resulting children. A known sperm donor agreement, on the other hand, contemplates that the sperm donor is…known" to the sperm recipient(s), and while there may be some anonymity in terms of the scope of his knowledge regarding the recipient(s), the donor will likely know the maximum amount of information about the child or children resulting from the sperm donation. The purpose of a known sperm donor agreement is to provide the recipient(s) with the appropriate legal protection regarding their use of the donor’s sperm, in exchange for assuring the known sperm donor that he will not have any parental rights, including the rights to make any decisions, should he ever wish to assert those rights. In many cases, the donor will wish to exercise some degree of unconventional parenting. For example, the donor may agree to have a minimal parenting role. Because there is no doctor or sperm bank in the picture here, an informed known sperm donor agreement will allow the parties to mitigate the risks associated with either the sperm donor acting as a parent or the recipient(s) denying the donor the opportunity to exercise those parental rights.
Legal consequences for the sperm donor
In addition to the law that covers the artificial insemination process, both as it relates to a known sperm donor and the insemination procedure itself, there is specific law regarding the rights and responsibilities one has as a sperm donor. So what are those rights and responsibilities? For starters, a 2010 bill was passed in New York State specifically addressing an alternative insemination procedure and the rights of all parties involved. The bill states that a sperm donor who donates sperm for artificial insemination under the supervision of a licensed physician in court approved circumstances will not be considered a legal parent of the resulting child; and the donor need not be involved in the artificial insemination process whatsoever. Not only that, a donor was held free of parental rights under Surrogate Parentage Contracts Law. However, DNA evidence can be used to determine paternity if the birth mother fails to maintain records pertaining to artificial insemination. Courts have also identified other restrictions that have implications for anyone participating in an artificial insemination agreement. They include: – Not holding a donor legally responsible for financial obligations where children born out of such inseminations are concerned. – Preventing a donor from seeking visitation with the child or being involved in any way in his or her life. Of course, as with anything, unforeseen issues can arise. Some here are potential legal issues that may arise for a sperm donor: – Issues arising as regards money. If a donor is donating through a clinic and the donor starts asking for the money back, that is not likely to be successful, since once the sperm is donated and at that point is someone else’s property. – Custody. Let’s say a donor inseminates a good friend. They have an agreement and in that agreement, the inseminating mother waives the right to ever request child support should she have a child. She raises the child as a single mother. Five years later, the mother finds a partner and they get married. The spouse wants to adopt his wife’s daughter. The biological father will need to consent or relinquish his parental rights, depending on the state he is in. And in so doing, he will need to consult with a lawyer and potentially become involved in the adoption process. Simply because one parent does not want to seek monetary or visitation rights does not mean the other parent will think the same way. – Challenges to the agreement. There is nothing stopping allegations is to contract "violation" – this is where parental rights come into play.
Parental responsibilities / rights
The impact of a known sperm donor agreement on the other parties can have far-reaching effects. It is important for all parties involved to be clear on the impact of such an agreement on their rights and responsibilities to the resulting child.
The sperm donor’s parental rights and responsibilities to a resulting child: In Pennsylvania, a "donor" is defined as a man who, if he is a parent of a child conceived by means of artificial insemination,[1] shall not be treated as a parent of such a child. In essence, a "donor" is not a legal parent of a child conceived by means of artificial insemination and thus has no parental rights or responsibilities to the resulting child.
The sexual partner of a woman who conceived a child, however, may have parental rights and responsibilities to the child depending on the circumstances. For example, if a woman conceives a child through sexual intercourse with a man ("sex partner") and the child is born to a married woman who is not the sex partner, the sex partner likely would have no parental rights or responsibilities to the child.
The intended parents’ parental rights and responsibilities to a resulting child: Intended parents have parental rights and responsibilities to a child conceived through artificial insemination if the intended mother was married at the time of insemination to a man who is not the father of the child, and the marriage occurred before the conception. In this scenario, the man to whom the intended mother was married to at the time of insemination is the presumed father of the resulting child.
The child’s parental rights and responsibilities to an intended parent: A child conceived through artificial insemination has two (2) legal parents – the intended parents. In general, a child conceived through artificial insemination has no legal rights and responsibilities to a sperm donor. A child conceived through artificial insemination has a legal right to a supportive relationship with the intended parents unless the parental rights of the intended parents are terminated.
The impact of a known sperm donor agreement: It is clear that parental rights and responsibilities arise with being a legal parent. It is important for all parties involved to understand the impact of a known sperm donor agreement on everyone involved to avoid disputes later on.
While a donor may be considered the legal parent of the child as a result of the parties’ voluntary action and more importantly, the agreement, the donor and intended parents must also understand that the agreement does not negate the rights of the marital partner to the child. The marital partner still has the right to be the legal parent of the resulting child if the marital status is not addressed in advance through a clearly drafted Sperm Donor Agreement. A clearly drafted agreement in such circumstances will state that the marital partner has no parental rights or responsibilities to the resulting child and that the parties intended for the sperm donor to be legally regarded as the parent of the child.
The unintended consequence of having a known sperm donor agreement that does not provide for the clarity stated above is that one of the intended parents may find himself or herself in the position of arguing that they are the legal parent of the child and in some circumstances, inevitably resulting in a complete stranger asserting the same right over the child.
A clearly drafted known sperm donor agreement is essential in preventing disputes before they arise. Without an agreement addressing all parties’ responsibilities and rights thorough and specifically, the resulting child does not have a voice and the parties were never in a position to have the opportunity to plan for the child’s future. Further, the resulting child should be put first when addressing the impact of the agreement so that the child knows that he or she is not being used as a pawn in a dispute over legal parental rights and responsibilities.
[1] 23 Pa.C.S.A. ยง 7603.
Key clauses in a known sperm donor agreement
A known sperm donor agreement should address several key issues, such as defining the scope of parental rights or obligations of the donor, as well as parenting rights of the intended parent who will be raising the child. Since applicable laws differ from state to state, it is essential to have a legal professional draft the contractual provisions.
Custody and Visitation Rights. The agreement should clearly set forth responsibilities involving custody and the right to visitation between the sperm donor and the child. Depending on the agreement, the donor can both have physical and legal custody over the child or have the same physical and legal custodial and parental rights as a parent who would be paying child support. If the donor agrees to relinquish such rights, he should be allowed to relinquish parental and custodial rights so that he is not legally recognized as the parent of the child. Any mediation or dispute resolution process should be outlined in the agreement.
Financial Child Support. Allowable financial provisions should be established in the agreement. Even if the sperm donor does not wish to play any role in the child’s life, non-monitored child support should be set up in such an agreement. In some states, these financial provisions can be enforceable in court as part of a child or spousal support order.
Disclosure of Parental Identity to Child. Depending on state law, you may be required to disclose the identity of the sperm donor to your child at a certain age. In some states, sperm donors from a sperm bank are not required to be disclosed.
State laws and variations
State laws can vary widely in terms of their treatment of known sperm donors. For example, in some states a sperm donor who is not a legal parent of a child conceived through artificial insemination remains a legal parent despite any contractual agreement to the contrary. Other states may not acknowledge the legal parentage of a sperm donor who is introduced to and knows the intended recipient . Still other jurisdictions do not require that the donor be anonymous or that the recipient be introduced to the donor at the time of artificial insemination.
It is essential to consult a lawyer familiar with the laws that govern such matters in your jurisdiction. This is true with respect to the enforceability of agreements governing known sperm donor arrangements as well as the legal rights and responsibilities that result from such agreements. Sperm donor agreements and relevant state law address:
Steps to preparing the known sperm donor agreement
The drafting process begins with selecting an attorney experienced in drafting known sperm donor agreements. I recommend selecting counsel who practices in the state where the intended parent(s) reside because, in the absence of a UCCJEA decision, the intended parents’ home state will determine the governing law. While it appears that the one of the states with the greatest body of case law is Texas, a choice of law discussion must be included in the agreement to ensure that any court reading the agreement understands which state law controls.
The second step in the process is to negotiate the terms of the agreement. Like all contracts, the parties are free to contract away their rights. Most client’s understanding of legal parentage and the impact of the contract may be limited, so I recommend explaining this area of law to the client early in the process to ensure that the contract meets the client’s needs. If the parties have different needs, for example, Husband is a biological foreign national and wants his name on the birth certificate as the biological father, and Wife wants her ex-husband’s name to remain off the birth certificate, we discuss the options and the legal ramifications of those options. We also discuss the ramifications of creating an anonymous donor procedure similar to Robert Guarini’s procedure with the Texas Department of State Health Services and statistically common scenarios.
The third step in the process is to draft the contract. Many contracts are signed before the donation takes place, however, I find clients are relaxed and can think through possible scenarios when meeting in my office after the donation. Since the contract is intended to bind the parties after the birth or subsequent births of children conceived by the sperm donation, I leave the option open to add additional children by executing an addendum. I also include a clause that says that the parties understand the legal implications of the contract, regardless of whether they have received independent counsel. The parties generally do not want to pay for multiple counsel, since the goals may be in conflict, but this clause helps to avoid a future legal battle based on the parties not understanding their rights.
Role of legal counsel
It is essential to have legal counsel involved in order to ensure that the agreement is appropriate for the parties’ situation and to address issues such as custody and potential support from the donor. An attorney can ensure that all considerations are addressed properly as part of the process. Without counsel involved from the outset , unintended issues are more likely to arise, which may not be handled properly to begin with. There are ongoing case law developments and legal principles that apply, and counsel can ensure that the agreement and all aspects are handled in a manner ensuring the best results for all concerned.
