What Is a Sperm Donor Contract?
Sperm Donor Agreements are contracts for the sale of a sperm donor’s sperm. These contracts should be drafted and signed by both the sperm donor and the recipient of the sperm. The sperm donor agreement makes clear the rights and responsibilities of all the parties involved in the donated sperm arrangement. Drafting and signing a sperm donor agreement can also be beneficial to the sperm donor in that it provides a form of contractual protection should the recipient of the claimed sperm donor child later claim rights or responsibilities over the sperm donor. In the past , sperm donor agreements were known as Sperm Bank Agreements but with the popularity of do it yourself Internet-based sperm donation, the term is fast becoming known as the do it yourself sperm donor agreement.
Items Typically Found in a Sperm Donor Contract
A sperm donor agreement is unique in that it must be carefully drafted and understood before conception. Because a sperm donor agreement will discuss the rights of the donor in regard to the child, and perhaps custody, it is very important to have an agreement in place before conception. Some issues that should be discussed and included in a sperm donor agreement include:
• The terms of the donation
• Confidentiality provisions
• Rights of the donor to know about the child
• Rights of the donor to visit the child
• Rights of the donor to be notified if the child is given up for adoption by the intended parents of the child
• Rights of the intended parents to keep the donor private and confidential
• Rights of the donor to visitation of the child, as well as the rights to discretion in regard to the donation
• Termination of rights
• Suitability requirements
• Fee agreement
• Waiver of rights
• Tax issues and responsibilities regarding the child
It is essential that all parties fully understand their rights and obligations under a sperm donor agreement.
Parental Rights Waiver
In the context of a sperm donor, a waiver of parental rights is a legal document that relinquishes the donor’s parental rights to any child conceived with the sperm. This contract serves as an agreement between the donor and the recipient whereas the donor waives the right to parent the child, be notified about the child’s well being, or have any financial responsibility toward the child. The primary purpose of this type of agreement is to protect the rights of both parties, specifically here, the donor. The sperm donor waiver determines what happens to his parental rights if the donor or recipient are married or unmarried, specify what would happen if a donor wished to live with their offspring, as well as if a donor is allowed to have contact or visitation with an offspring.
Ideally, this agreement would be the first drafted in a particular donor agreement package for the donor and recipient to consider before undergoing any procedure. A waiver of parental rights is designed to protect both the child and parent from any future claims of opportunity, obligation or inheritance.
Consequences for Sperm Donor or Recipient
Like any contract, a sperm donor agreement limits the rights of the sperm donor by requiring him to waive many of the legal rights he would otherwise have to the child conceived with his donation. For example, the donor agrees to waive his parental rights and responsibilities and agrees not to have any visitation with the child. He also waives any right to any future contact with the mother regarding the pregnancy and/or resulting child, and he waives the right to assert any paramour rights that might arise if he and the mother were not married when the child was conceived.
Courts have been called upon to address the legal implications of a sperm donor agreement and what legal rights a sperm donor has over a child conceived with his sperm. While most sperm donors do not seek any paternal involvement in the life of the child (and, as noted above, include this waiver of rights in their sperm donor agreement), some do want familial contact and relationships with the child conceived with his sperm. Those sperm donors have successfully asserted their rights in New York to have continued contact with the child.
However, these cases were decided based on the facts of each case and the discretion of individual judges. Most of the cases granting sperm donors parental rights were decided before Section 70-5.5 of the New York Administrative Code became effective. As noted above, it provides, in part, that "[w]here a woman conceives a child through artificial insemination from a sperm donor or by an equivalent medical procedure, no such woman shall be deemed a parent of the child, the child shall have no rights of inheritance from such woman, and the sperm donor shall be deemed not to be a parent of the child and shall have no rights of inheritance from the child."
The Sperm Bank Consortium, an organization formed to represent the interest of sperm banks, has published a position statement that it would support amendments to the statute (and other medical protocols) to recognize the "rights and responsibilities of parties and reduce litigation over the legal status of Children." It further states "that the statute should recognize that the parties are free to opt-in to a parenting relationship with clear, expressed agreements, written or otherwise recorded." It remains to be seen whether and how the courts will interpret the law.
Creating Your Own Sperm Donor Contract
An agreement should be drafted that acknowledges the intentions of the donor and birth parents. Going at this process without the assistance of an attorney can lead to misconceptions about the rights of the mother, donor and unwed father. It also can result in traps for the unwary. For example, if a family decides to use a known or anonymous donor and both parties sign an agreement, but the birth mother never has the document properly witnessed or notarized and it is not dated, the agreement may be ruled invalid under the statute of frauds. If a sperm donor gives his sperm to another couple (or single woman) and then he files a lawsuit for visitation , the couple or single mother may end up having to fight a legal battle over what they thought would be a simple procedure. Each time this happens it costs the parties in legal fees and the person receiving the sperm may or may not end up with custody over their child. So if you are thinking about pursuing this type of assisted reproductive technology make sure you consult with an attorney experienced in drafting these types of contracts to make sure that you are protected. The agreement should:
- Clearly identify the parties
- Clarify that the sperm donor has no parental rights and waives any claims he might have as a result of the donation
- List all of the rights and obligations of the sperm donor
- Include a provision that prohibits the sperm donor from filing a petition to establish paternity or seeking custody or visitation
- State that the birth parent/s agree to follow all provisions of the law governing artificial insemination with respect to the donor
- Include language about allowing the child to contact the donor if both the donor and child wish to do so at some future date.
Variations in state law
State law plays a significant role in the outcomes of disputes between donors and parents. While all states recognize reciprocal sperm donor agreements as valid contracts, enforcement can be a different matter. Only a few states offer a viable avenue for enforcement. These states are: Florida, Texas, Alaska, North Carolina, and Washington. Even in these states, however, there is very little case law. Furthermore, the enforcement of a sperm donor contract is dependent upon the agreement’s particular terms.
The main issue to explore in these jurisdictions is what "cut off" date should a court look to in determining whether an agreement is enforceable. Should the court consider the cut off date of when the agreement becomes effective, or the date of conception, which may occur months after the effective date of the contract? The answer is not clear and varies, at least, within Washington. In State v. Wattle (2005), a person could only pursue a child support claim against a sperm donor if he and the birth mother entered into a written agreement regarding the insemination prior to the woman attempting insemination. A few years later, a case came before the same court where the child was conceived before the birth mother executed the sperm donor agreement. In that case, the court held the birth mother could not bring a claim against the donor for child support because she had no written agreement with him before conception. However, the court did not analyze or address the first case in reaching this decision. It is unknown why, and ultimately the answer remains unanswered.
Examples of Cases and Lessons
Courts in several states have considered the enforceability of sperm donor agreements, with mixed results. In a case in which the donor later attempted to reunite with the child he had fathered, the Michigan Supreme Court held that the child was not permitted to sue the biological father for support because the donor had signed an agreement waiver his right to have a relationship with the child.
The California Court of Appeal, however, refused to enforce a waiver of rights in a sperm donor agreement. In that case, an anonymous donor was engaged, but after the couple was married, the husband wanted to identify the donor and inform the child about his parentage. Installing new sperm donor rights and obligations, the court said: "Even when sperm donors enter into an agreement not to have contact with future children, that agreement does not terminate their parental rights. Instead, such donors are permitted to have the option to contact their children under carefully defined circumstances . "
In a more recent case, the Pennsylvania Superior Court applied the Uniform Parentage Act to grant visitation rights to the donor, a gay man who donated sperm to his same-sex partner in order to conceive a child. After splitting up, the co-parents (partner and donor) entered into a detailed and court-approved co-parenting agreement that required the donor, known to the child as "Dad," to meet with the child every two weeks and to provide $250 a month towards the child’s upkeep. When the other co-parent (the one who gave birth) turned off her phone and broke off regular contact, the donor sued for $10,000 for breach of contract and enforcement of the agreement. The appeals court rejected the defendant’s claims that paternity tests were required to establish parentage, finding that the substantial number of times that the donor rented rooms in the house where the child lived, plus his numerous contacts with the child while living there, plus the provisions of the Maternity Act, were sufficient to establish parentage.