Surrogacy, adoption, and sperm donors are a few among many options that are available for couples or families that want to have a child of their own. In this article, we will cover information regarding the legality of sperm donors, can they contact their children after years? Do they get to have a say or contribute in any manner to the child’s life? What are your parental rights and what needs to be mentioned in the contract?
In general, it is understood that one cannot waive their parental rights. However, it is common for sperm donors to surrender their parental rights to a child born out of his donation. In some instances, same-sex couples usually tend to ask their closest friend and naturally, he waives his parental rights as well. Sperm donors must be well-versed with their obligations, and legal implications and go about the correct manner when donating their sperm.
YOU CANNOT WAIVE PARENTAL RIGHTS VIA CONTRACT[1]
A judge in Topeka, Kansas recently ruled that a sperm donor owed thousands of dollars in back child support for a child four years after the child’s conception. The donor thought he had surrendered all parental rights through the contract he signed with the child’s mother, but the Kansas court ruled that a parent cannot waive parental rights and escape parental obligations through a contract. There are only three ways a parent can waive his or her parental rights:
- A judge determines the parent is unfit based on objective evidence, such as a history of drug abuse or domestic violence.
- Relinquishment of parental rights and adoption. If a parent relinquishes his or her parental rights voluntarily so another person may legally adopt the child, the parent is no longer obligated to provide child support.
- Adjudication for a child in need of care. This would apply to a custody case in which one parent does not receive any custodial rights over the children involved and the custodial parent does not argue for child support.
To be safe regarding all aspects sperm donors must choose licensed facilities with licensed physicians. A licensed facility ensures that you do not get in trouble in the future, with child support obligations etc., they also ensure anonymity that way neither the donor nor the donor-recipient gets to contact each other. Certain facilities will also have their own set of provisions regarding the same. Parties can come into a contract, which would be a private agreement between the donor and the recipient and accordingly, the rights and obligations of the donor can be discussed.
In the United States, some states decide parental rights based on heredity or genetics. If no one assumes responsibility for the child then naturally, the donor will hold parental rights over such a child. The mother if married, her husband will possess parental rights. As such, the mother is usually considered the legal guardian of a child born via anonymous sperm donation. Legal implications differ from state to state. In the state of California, “a known sperm donor will not be regarded as the legal father in California unless he has consented in writing to be the father before conception. This rule is followed in the state of Illinois as well, where a known sperm donor is not regarded as the legal father unless he has consented to be the father in writing before conception and is identified on the child’s birth certificate. Whereas, in the state of New York a known sperm donor will not be regarded as the legal father in New York unless he has accepted in writing to be the father before conception and has a connection with the kid.”[2]
The use of third-party reproduction has been practised for over a century.[3] With the advancement of assisted reproductive technologies in recent years, the market for assisted reproduction has increased with many individuals and couples turning to third-party donors to receive gametes.[4] Depending on the process used to procure the donated gamete, the recipient may or may not know the identity of the donor.[5] To receive donor gametes, recipients have the option of using agencies or clinics, close friends or relatives, or even strangers located through advertisements in publications or online.[6] While minimally regulated, obtaining donor gametes through traditional clinics and sperm banks requires some protocol; in contrast, “buying sperm over the internet … is not much different than buying shoes.”[7] In the 1960s, states such as Georgia and California began to recognize donor-conceived children as legitimate, and in 1973 the Uniform Parentage Act (UPA), a model statute that may be adopted on a state-by-state basis, recognized the paternity of husbands who consented to their wives’ artificial insemination.[8] As first promulgated in 1973, the UPA addressed artificial insemination only in the context of married couples.[9]
Back then, husbands were legally recognized as the father of a child and not the sperm donors. There were, however, 3 conditions that needed to be fulfilled. They were:[10]
- The artificial insemination was conducted under a physician’s supervision,
- The husband gave his written consent; and
- The physician filed the consent with the state health department.
“Many courts are reluctant to deny parental rights to known sperm donors if they request them. In Jhordan C. v. Mary K., the court awarded paternity rights to a man who donated his semen to inseminate an acquaintance. The woman performed the insemination herself at her home and not under the direction or supervision of a licensed physician. After the child was born, the donor demanded monthly visits with the child and the mother reluctantly agreed. The donor later filed an action to establish paternity and visitation rights. The court ruled in the donor’s favor, determining that the donor’s parental rights were not extinguished under the applicable state statute because a physician was not involved and because the donor’s regular visits with the child established that the donor and woman acted as if the donor had some familial status with respect to the child. The parties in the Jhordan C. and Mary K. case did not reduce their arrangement to a writing. Therefore, the court looked to the parties’ actions to construe the intent of the arrangement.”[11]
In 2017, a lawsuit was brought in U.S. District Court for the Northern District of Illinois regarding autism diagnoses among multiple offspring of Donor – H898.[12] The suit asserts that false information was presented regarding a donor who should not have been considered an appropriate candidate for a sperm donation program because of a diagnosis of ADHD.[13] There are two types of surrogacy, traditional and gestational surrogacy.
Donor sperm may be used in surrogacy arrangements either by artificially inseminating the surrogate (known as traditional surrogacy) or by implanting in a surrogate embryo which has been created by using donor sperm together with eggs from a donor or the ‘commissioning female’ (known as gestational surrogacy).[14] Procedures of any kind (e.g., artificial insemination or IVF) using donor sperm to impregnate a female who is not the partner of, nor related to the male who provided the sperm, may be referred to as “donor treatments”.[15] Non-anonymous donors are also called “known donors”, “open donors” or “identity disclosure donors”.[16] A review of surveys among donors came to the results that the media and advertising are most efficient in attracting donors, and that the internet is becoming increasingly important in this purpose.[17] Recruitment via couples with infertility problems in the social environment of the sperm donor does not seem to be important in recruitment overall.[18]
A sperm donor will usually donate sperm to a sperm bank under a contract, which typically specifies the period during which the donor will be required to produce sperm, which generally ranges from six to 24 months depending on the number of pregnancies which the sperm bank intends to produce from the donor.[19] If a sperm bank has access to world markets e.g. by direct sales, or sales to clinics outside their own jurisdiction, a man may donate sperm for a longer period than two years, as the risk of consanguinity is substantially reduced and a sperm bank will have to adhere to local laws, although these may vary widely.[20] The contract may also specify the place and hours for donation, a requirement to notify the sperm bank in the case of acquiring a sexual infection, and the requirement not to have intercourse or to masturbate for a period of usually two–three days before donating.[21]
DO I NEED TO CONSULT A LAWYER ABOUT SPERM DONATION?
It is always advisable that one talks to their family lawyer or any lawyer who handles family or civil cases. For instance, a child that is born through an anonymous sperm donor might not necessarily be able to inherit family heirlooms or anything for that matter as compared to biological children from the donor. As stated earlier, rules tend to change in different jurisdictions. It is important that you critically analyze all legal implications thoroughly. Speaking to a lawyer or a certified physician where you are not donating necessarily, in order to better understand your rights and duties.
[1] Do Sperm Donors Pay Child Support? (boydlawlosangeles.com) [2] Does A Sperm Donor Have Parental Rights and Obligations? | LegalMatch [3] Am Soc’y for Reproductive Med. Third Party Reproduction: A Guide for Patients. 2006;3:9. [Google Scholar] Third party reproductions refers to the use of eggs, sperm, or embryos that have been donated by a third person to enable an infertile individual or couple to become parents. Donors may be known or anonymous to the intended recipient.” [4] Ibid [5] Ibid [6] Id. at 4-5. [7] Id. at 5; Egan Jennifer. Wanted: A Few Good Sperm. NY Times. 2006 Mar 19; [PubMed] [Google Scholar]at 46 [8] Ga. Code Ann § 19-7-21 (2004); People v. Sorensen, 437 P2d, 495, 498, 501-02 (Cal. 1968); Unif. Parentage Act § 5 (UPA), 9B U.L.A. 407 (2001). [9] UPA Section 5. [10] Ibid 10. [11] Lisa Luetkemeyer and Kimela West, Paternity Law: Sperm Donors, Surrogate Mothers and Child Custody, The Journal of the Missouri State Medical Association, 2015 May-June. Retrieved from: Paternity Law: Sperm Donors, Surrogate Mothers and Child Custody - PMC (nih.gov) [12] Cha, Arlana Eunjung, The children of Donor H898, The Washington Post, September 14, 2019. [13] Sperm donation - Wikipedia [14] "What is Gestational Surrogacy, How it Works | Surrogate.com". surrogate.com. [15] "Donor Sperm for Fertility Treatment | IVF Australia". www.ivf.com.au. [16] Ibid. [17] Van den Broeck U, Vandermeeren M, Vanderschueren D, Enzlin P, Demyttenaere K, D'Hooghe T (2012). "A systematic review of sperm donors: demographic characteristics, attitudes, motives and experiences of the process of sperm donation". Human Reproduction Update. 19 (1): 37–51. doi:10.1093/humupd/dms039. PMID 23146866. [18] Ibid. [19] Sperm donation - Wikipedia [20] "Top U.S. Sperm Banks: Compare & Find Ideal Sperm Donor Facility Near Me". www.ivfauthority.com. [21] "Sperm Donor Process | Australia Needs Your Sperm | Help a family in need". Australia Needs Your Sperm.