What is a Known Sperm Donor Contract?
In the context of pregnancy and IVF, a known sperm donor contract is a legal agreement between a sperm donor and a recipient (or her partner) that outlines the rights and responsibilities of both parties as they relate to the donation of sperm in order to create an embryo for implantation into the recipient’s uterus. The main purpose of a known sperm donor contract is to define and establish the legal relationship between the parties and their offspring and to make legally clear that the donor is making the donation to the recipient with the intent of giving up all rights and responsibilities (parental or otherwise) for the resultant child.
For intended parents who are familiar with the process of using an anonymous sperm donor , their first reaction to a known sperm donor may be surprise or fear at the thought of an anonymous donor suddenly revealing himself! However, a known donor does not have such a right if he enters into a known sperm donor contract with the recipient. Once signed, a known sperm donor contract generally makes it clear that the donor relinquishes all parental and financial obligations for any resulting child, and establishes that there is no existing or future legal relationship between him and the child.
Donor Contracts and the Law
It is important for sperm donors and intended parents to understand that a formal written contract is the best way to ensure that the intentions of both parties are known and records established should a dispute arise. During the drafting of the contract, the donor and the prospective parents will determine the nature of their relationship, raising and addressing questions about parental rights and responsibilities.
Key terms to consider include:
• Agreement term
• Payment before or after conception
• Withdrawal of consent by donor
• Effect of divorce on contract
• Parental rights
• Parenting responsibilities
• Future contact
Research into how the law views donors across states, including any revisions of existing laws that attempt to make sperm donor contracts more enforceable, may indicate whether pregnancy via a non-anonymous donor is likely to be considered a valid basis for parental rights. However, even if courts in some states do not give donors rights to visitation, it does not mean the courts will disregard the intent of a properly drawn agreement executed prior to the birth of resulting children. A statute such as Georgia’s has been introduced in other states as a way to address this issue. This is an emerging legal area in which each state handles the issues in a different manner.
What Goes Into Drafting a Donor Contract?
When writing a donor contract, there are several contracts that should be included, as well as issues that should be addressed. A typical sperm donor contract should contain the following provisions as minimum requirements:
• Confidentiality: Under uniform law, the anonymity of a donor can be maintained unless and until the court enters an order requiring notivce to a donor who is identified as "a person whose identifying information is given to a court in a proceeding." Nothing in Medicaid requires or authorizes a court obtaining or disclosing the identity of a genetic parent.
• Financial Responsibility: The contract should also contain language that addresses the financial responsibility of each party. The prospective mother should agree to pay for the cost of the insemination procedures. The donor should agree to the fees associated with his or her medical testing. Although not required, reimbursements by the mother are a good idea to offset the testing expenses of the donor.
• Child Visitation Rights: Most donors do not wish to retain parental rights to a child born from their sperm donation. However, when a couple intends to have a known donor remain in the child’s life as a co-parent or visits with the child, it is very important to address issues regarding visitation. Any visitation or parenting provisions should be thoroughly discussed and detailed in the contract.
Perks of Having a Donor Contract
Contracts result in many benefits for both a known sperm donor and the parents. Namely, a contract should be a primary aim as it will help to avoid or prevent future disputes. For example, if a child later feels that he or she has a right to visit the known sperm donor that will be difficult to avoid without an agreement in place. Contracts can also be amended to address changing circumstances as the child grows.
Contracts may give all parties peace of mind with respect to the expectations of the child and the rights of the donor. Both the parents and the donor can benefit when all of the rights are outlined in writing. Of course, the donor should be aware that he may have future legal battle if he does not have a formal agreement with the parents.
Common Term Misconceptions in Donor Contracts
Myth: A consent form or recipient contract is enough to address this issue and protect both the donor and the recipients.
Truth: While possessing a written consent form that states the donor relinquishes all of his parental rights may indicate an intention not to claim parentage, it does not guarantee that this intention will be sufficient to eliminate a donor’s parental rights under the laws of the relevant jurisdiction. A properly drafted donor contract should contain adequate and enforceable provisions that renounce the donor’s parental rights as well as obligate him to pay child support and establish a clear agreement among the parties about child support, custody, and other issues that may come up in the future. Many people mistakenly believe that the law in their state automatically terminates a donor’s parental rights in this situation. Unfortunately, in many states, while the law may be aimed at establishing that the donor is not the legal father of the child, it does not go far enough to terminate his parental rights and obligations. In fact , many states have enacted laws regarding artificial insemination with donors without thinking through all the scenarios that may play out for donors and recipients.
Myth: Donor contracts are only for people who are using sperm from a known person, sometimes called a "proven donor."
Truth: Regardless of whether the donor has previously fathered children, it’s critical to enter into a contract before the conception efforts take place. Even if the donor is unknown and is selected from a sperm bank, at a minimum, the donor and the recipients should sign a contract that explicitly addresses issues that could come up down the road, including parental rights, child support, and custody and visitation issues.
Myth: The contract is more like a not-so-legal agreement that one person presents to another and both agree to and sign.
Truth: For a donor contract to be enforceable, it must be signed by all relevant parties and be as comprehensive as possible. It should be drafted to include important provisions that satisfy the requirements of the law in your state and also thoroughly cover any issues that may arise between the donor and the recipients in the future. For this reason, having a lawyer who is experienced in these matters draft a donor contract is especially helpful.
A Guide to Drafting a Sperm Donor Contract
There are several steps to draft a known sperm donor contract; however, the first step should be to consult with an attorney. It is critical that all parties fully understand the document and the ramifications of committing it to writing. Further, it goes without saying that suggesting the need for the written contract should not be done by the pregnant person. The donor should know that he is the father of the child and should be willing to relinquish all parental rights as well as give up all obligations of parenthood. Typically, this document should be drafted by a person who deals with these cases on a routine basis. For example, some states will recognize a sperm donor as a parent only if the donating man relinquishes his parental rights before the child is conceived. Also, some organizations – either doctors, sperm banks or other agencies – will not allow a mother to donate unless she has a contract for this right in place. It is important to have an attorney who knows the law and performs this type of service regularly available for consultation.
Useful Case Studies and Examples
A recent case out of Chicago illustrates why a known sperm donor contract is critical for both parties. In the case, the prospective parent and the sperm donor were in a steady, serious relationship for over a year when they decided to try to have a baby. They worked with a doctor who had experience with IUI births, and set about the process of using donor sperm to conceive. The relationship deteriorated, the baby was born and litigation ensued. The prospective parent alleged that the donor was the child’s other legal parent due to the fact that the baby was conceived via IUI; that the donor had agreed to be appropriately involved in the child’s life; and, therefore, that the donor was legally obligated to provide ongoing health insurance coverage for the child. The donor countered that he was acting as a sperm donor only and had never intended to serve in any parenting role for the child. The trial court sided with the donor, stating "no reasonable person could have expected to be responsible for a child [the donor] intended to support minimally."
Another real-life example is a gay couple who sought to build their family with the assistance of a known sperm donor who was a friend of theirs. The donor belonged to a religious order and donated his sperm solely to the couple to build their family. The couple brought the donor in for all medical appointments and wanted to be sure that the donor understood that his parental rights in the child would be severed and that he would not have any parenting rights or responsibilities . Following the birth, the couple and the donor never executed a contract to memorialize these considerations. The donor enjoyed a good relationship with the couple, visiting regularly and babysitting the child from time to time. Several years later, the couple separated. After the separation, there was an argument between the responding parent and the donor about the donor’s continuing to have a relationship with the child. The responding parent was concerned that the donor would have had parenting time with the child after the separation, would be allowed to stay in the child’s bedroom when visiting from out of town, and would make parenting decisions on behalf of the child without the responding parent’s consent. The responding parent asked the donor to take a step back from the child’s life, and the donor did not see the child for several months. During this period of time, the couple never memorialized anything that would make clear the rights or obligations of each party. Once they did, it was easier for the parties to move forward with a co-parenting schedule. This scenario ends favorably – the donor and the responding parent were able to work out the following: how often the donor could see the child, parenting decisions, and default language in case the responding parent passed away suddenly. They also worked out a corresponding financial plan for equal parenting costs. However, had the donor and responding parent executed a contract up front, they would have been able to better avoid the conflict in the future.