What You Need to Know About Sperm Donation Contracts
Sperm donation contracts with donors and recipients are vital in the contractual exchange of both sperm and non-public information. The contract protects both parties and legally outlines the relationship, intentions, and expectations of each party involved. The contract defines the legal, parental and financial obligations of the donor, as well as parental and financial obligations of the recipient. Not all conception comes free of complications and potential repercussions . Natural conception can lead to child support payments, inheritance action, shared custody, and other extended complications with ramifications for decades to come. Alternatively, artificial insemination, sperm banking, and legal intervention can all have complex elements demanding attention from legal professionals. A simple mistake or omission in a sperm donation contract can lead to emotional conflict, and also unwanted legal issues. Sperm donation agreements not only protect the two parties directly involved, but can also limit liability for medical facilities, artificial insemination clinics, and sperm banks.
Components of a Sperm Donation Contract
There are a number of key areas that should be covered in a contract between the parties. A contract should address the issues of disclosure of the donor’s identity, parental rights and financial obligations, anonymity of the donor, health screenings, and other age-appropriate concerns.
The contract should clearly stipulate that the donor waives any legal rights to a child born to a recipient person through the use of the sperm and that the recipient accepts sole responsibility for the child. Specifically, the contract should outline the nature of the donation, donor anonymity, parental rights, disclosure of personal information, financial support, psychological issues, health screening, embryos, dispute resolution and modification or severability of the agreement.
With these issues in mind, a donor should consider how anonymous they wish to remain to both the recipient and any resultant child prior to signing an agreement. In this sense, the agreement should also address the issue of whether subsequent donations will be considered "further remuneration" or whether each future donation will constitute a separate transaction.
Anonymity can be an essential factor in a sperm donation contract, and guarantees of anonymity vary. Typically, arrangements between a donor and recipient regarding anonymity should be explicitly addressed in the contract in order to avoid later problems. It is important to note, however, that the laws vary greatly by state and donors should seek counsel since, in some states, an anonymous donor may not necessarily remain anonymous. Non-anonymous agreements should address how long the material will be stored (sometimes long after the contract is signed) and the time frame may limit the period a donee/recipient may decide to utilize the material. A donor who wishes to have no association with a donee’s family or child might want to require some minimum notice be given before a freezing facility agrees to send out his sperm.
In some cases, a contract may require the donor to agree to submit to a psychological evaluation, which is fairly common at established sperm banks. There is no scientific evidence that semen type or donor health effects the future health of the resultant child. But many sperm banks require a psychological evaluation (most often in an interview) before accepting an individual’s sperm donation and will pay a portion of the donor’s costs associated with having the interview performed by a doctor or psychologist. Once the interview is completed, the bank may then use the results in determining whether to accept or reject the sperm donation. The contract may further stipulate that the donor will provide genetic testing or other laboratory tests, the tests required and the purposes for the tests.
Legal Rights for Sperm Donors and Recipients
The legalities of sperm donation agreements not only protect the recipients, but also the donors. A sperm donor who follows the instructions on the use and handling of the sperm is protected from liability as long as they donate through a licensed sperm bank or cryobank that operates under federal and state guidelines. However, if the donor and recipient make use of a private donation (directly from the donor to the recipient), the contract is much more critical. In this scenario, if the contract is done correctly, the sperm donor loses all future claims to custody, visitation, and inheritance rights to any resultant children.
In cases where the proper contract is not executed and followed correctly, or it is simply not drawn up at all, a sperm donor can be held liable for child support. A recent court case involving the California sperm donor who has since been ordered to pay child support to a mother who became pregnant through a private donation may set a precedent moving forward. Although the donor was intended to assume all rights and responsibilities, a judge ruled that the right to exercise parental control rests with each parent of a child. The judge ruled that because the woman had remarried, any parental rights had been bestowed upon her new husband and that he would be primarily responsible for raising the child.
As long as the sperm donations are made through a licensed agency, the individuals who benefit from the donation and the biological donor are protected from any future liability. Many states have laws on the books that dictate the usage of sperm and egg donations, and by working within these guidelines, prospective parents and sperm donors can work together to achieve their goals without the worry of future legal implications.
Writing a Sperm Donation Contract
Once the parties agree on the terms to which they will both be bound, a sperm donation contract should be drafted. Because this issue is governed by state law, if at all possible, the parties should consult experienced legal professionals in their state when drafting the contract. If there is no one with such experience, or even if there is someone, the parties should also consult the reproductive specialists that they will be dealing with regarding donation as they will be most knowledgeable about the terms that should be included in the contract as well. It is always best for both the sperm donor and the recipient to have their own lawyers draft the contract and/or review the contract after it has been drafted. Since this document is, for all intents and purposes, a contract of adhesion, having knowledgeable legal counsel go over the agreement should ensure that the sperm donor and recipient definitely agree to all the material terms. We also must point out that we are not affiliated with any sperm banks and we do not recommend specific sperm banks to our clients.
Fine-Tuning Your Sperm Donation Contract Based on the Arrangement
Sperm donation contracts are not one-size-fits-all, and it is essential to create an agreement specific to the arrangement at hand. For example, anonymous or closed sperm donation is commonly used to allow a donor to remain unknown to the recipients. However, in contrast, a known or open donation means that all parties are on a first name basis and have agreed on the terms of mentioning the donation to any future children. Specifically regarding donations involving LGBTQ+ families, "known" sperm donors are also more likely to donate when they understand how they could still maintain a presence in the child’s life if everybody is comfortable with that. While donors who intend to share a role in the child’s life are less likely to seek anonymity, it is important to create custom contracts that specify the donor’s involvement. Donor consent can be withdrawn, or parental rights can be terminated , making it even more important to ensure that contracts are clear and comprehensive. The above example highlights how "donor consent" may not be as large of an issue for a known donor who plans to maintain a relationship with the child. On the other hand, a contract for a known anonymous donation should clearly outline the donors’ rights. Single parents, single parents coupled with co-parents, LGBTQ+ families, and LGBTQ+ couples that use known versus unknown donors need to specifically detail: It is also important to keep in mind the potential impact of parentage laws, parental rights, and child support obligations. In California, for example, a sperm donor has parentage rights unless the contract specifically waives those rights. Of course, a contract can be held up in court if it doesn’t adhere to all the complicated local and state laws surrounding parentage.
Dispute Resolution in Sperm Donation Contracts
Like any contract, a sperm donation agreement is not a fool-proof instrument. Conflicts can and do arise, ranging from simple disputes to full-blown legal battles. Common issues include disagreements over the role of the sperm donor, issues of breach, failure to live up to the contract terms, and circumstances that arise after signing that were not originally contemplated. The parties to a sperm donation agreement may need to call in a mediator in order to resolve their conflict. The appeal of mediation, in this context, is that it helps preserve the relationship between the donor and the recipient, which the parties themselves likely want. Mediation also helps avoid the cost and time investment of litigation. During mediation, both the donor and the recipient will get a chance to present their case, and give the mediator their direct input which may ultimately help resolve the dispute. If mediation fails to produce a solution, court intervention may be necessary. In the event of litigation, the court will investigate the case and determine what an equitable outcome is, based generally on a close examination of the agreement that was signed by the parties. Counsel experienced in family law may be able to offer valuable advice to donors and recipients on what actions will most likely yield a favorable result. For example, if mediation fails to achieve a solution and a donor and recipient end up in court, it may be in the interested of one or both of the parties to seek or avoid alimony or child support.
Sperm Donation Contracts: International Considerations
International considerations can arise when the geneological parents of the child are domiciled in separate jurisdictions, or when the donor, the donor’s sperm bank, and the recipient are all domiciled in different jurisdictions. Issues include: It is often the case that not all of the jurisdictions listed above will have the same regime for the application of those laws to the facts. There are also circumstances where no foreign court would have jurisdiction over any of the parties or over the child. If an issue arises, it can be argued that the family law regime in force in the country in which the affairs of the parties are centred should apply. A foreign judgement rendered by a competent court of a foreign state may be recognised in Canada, subject to certain limitations . However, the judgement may take effect in Canada as the judgement rolls up in the state of origin (or the foreign domicile of the parent), or may take effect in Canada as provided for in the judgement. The foreign judgement must be enforceable in law in Canada, and not against public policy. The final judgement of the adjudicating court must be given in person and not in default, and will take effect in Canada as if given in the province of appeal. In certain circumstances, a party may apply to the Family Court to have a decision of a foreign court given effect in Canada. The title of the application is Application for Recognition or Enforcement of Foreign Order.