By Diana Adams, Esq, Attorney and Mediator
Many families today seek artificial insemination from a sperm donor, including lesbian couples, single women, and heterosexual couples in which the male does not have viable sperm. Despite the availability of sperm banks, many women prefer to collaborate with a male friend. In this situation of ‘informal sperm donation’, a Sperm Donor Agreement is essential.
A Sperm Donor Agreement is a contract between the sperm donor and the person seeking to use that donor’s sperm for insemination purposes, without using a sperm bank as intermediary. The primary purpose of this document is to clearly identify that although the sperm donor is the biological father, he intends to sever all legal rights and responsibilities of fatherhood, including visitation access, all decisions about the child’s health, religion, schooling, or anything else, responsibilities for child support, and any other care or support of the child.
Swept up in the excitement of planning parenthood, potential parents and a potential donor may not speak in detail about their expectations of the donor’s role. As with a romance, people often rush past important stages of trust-building and negotiation. The discussion and reflection involved in crafting a well-meditated agreement will help prevent future misunderstandings and disappointments.
For instance, everyone must be in agreement about the role of the sperm donor in the child’s life, if any. A lesbian couple may choose a sperm donor who is a relative of the woman not intended to give birth, so that the child will be related by blood to both women. In other instances, a trusted friend may be invited to be a donor. In either case, it is likely that the donor and the child will come into contact, and it is in the best interest of the child that the donor and potential mother (or couple) come to agreement about the expected level of contact, if any. In some families, the donor may be treated like a special uncle, always present at birthday parties and family gatherings. The child may know from a young age that this man is his donor, and that they have a special connection. Other families choose for the child and donor to have little or no contact. There is not one right way to handle this issue, conflicting expectations lead to conflict.
What issues should be discussed between a potential sperm donor and birth parent?
I recommend that a potential sperm donor and potential birth mother or couple sit down and discuss the following:
- Do both sides agree that the sperm donor will never have financial responsibility of any kind?
- Do both sides agree that the sperm donor will relinquish all legal parenting rights, including decision-making about the welfare of the child, or formal visitation rights?
- Will the donor have a relationship with the child? If so, how often will the donor visit the child? (Occasionally is not specific enough. Once a week? Several times per year?)
- What will the child call the donor?
- When will the child be told that this person is his or her donor?
Since in some states, a Sperm Donor Agreement has tenuous or no legal standing, it is essential that both sides feel significant mutual trust.
Whether to prevent litigation or interpersonal strife, it is crucial to find a donor you are sure will not change his mind in the future, even if he ends up not having other children or if he disagrees with your parenting choices.
Similarly, a donor should be confident that the birth mother is emotionally stable and capable of parenting without financial or other assistance. If the potential donor is merely a friend of a friend you have only met a few times, it may be better to just use a sperm bank.
The process of insemination: Is a turkey baster enough?
A Sperm Donor Agreement will be most legally viable if a licensed physician is used in the insemination process. This may involve a several month waiting period in which the semen is ‘washed’ and tested by the medical facility, and then several months of insemination attempts during ovulation. Families often balk at the time and expense of this process, but if you have concerns about the legal status of the agreement, this effort may be very worthwhile. I recommend using a physician in New York State, or consulting with an LGBT family law attorney in your state for advice tailored to your situation.
Will a Sperm Donor Agreement be enforced in court?
This field of law is shifting with the increased acceptance of artificial insemination and alternate routes to parenting.
As of January 2012, Sperm Donor Agreements precluding the parental rights of sperm donors have been enforced in California, Colorado, Florida, Indiana, New Mexico, Ohio, Oregon, and Washington, DC, particularly if done via a licensed physician and where there is no involvement in the child’s life by the donor. Keep in mind that these challenges were raised because one party to the agreement later tried to contradict the agreement in court, either with a sperm donor seeking visitation rights or a mother seeking child support (or the state seeking it for her if she is on public assistance). These challenges are very rare, but still cause anxiety and present a slight risk to those entering into Sperm Donor Agreements.
In New York courts, donor agreements have been enforced between a donor and married couple, in which case the couple is assumed to be the legal parents, including in same-sex marriages; in New York, donor agreements are also enforced when the partner of the woman being inseminated adopts the child in a second-parent adoption. In this case the legal rights of the donor are severed. I strongly recommend second-parent adoption for same-sex female couples; their marriage may not be accepted in other states as evidence of parental relationship to the child, but a second-parent adoption is strongly legally enforceable nationwide.
It is worthwhile to create a Sperm Donor Agreement even its enforceability is legally uncertain. The process of negotiating the agreement and memorializing shared intentions in writing agreement will make it very unlikely that the parties will later disagree and bring the matter before a court. In the unlikely event that you do go to court, even if the agreement is not binding in your state, the court may look to it for guidance in what you intended and often uses it as a factor in making its decision. Furthermore, we need strong Sperm Donor Agreements challenged in courts so that they may be ruled legally binding. If a strong agreement is presented in a New York court, we will have the chance to change New York state law to make Sperm Donor Agreements enforceable and help future parents protect their rights.
Diana Adams, Esq is an attorney mediator who assists families to create stable family agreements, including Sperm Donor Agreements, second-parent adoptions, marital contracts. Her practice is based in New York and often serves the LGBT community. www.dianaadamslaw.net