What Exactly is a Sperm Donor Agreement?
A sperm donor agreement is a written document signed between the parties involved, usually the sperm donor and the recipient couple, which makes clear the intent of parties with regard to the artificial insemination procedure. More specifically, it will typically set forth the terms and conditions under which sperm will be donated to the recipient for the purpose of artificial insemination, and it will also set forth each person’s rights and responsibilities with respect to the unborn child that may result from the artificial insemination procedure .
Although it is not possible to absolutely eliminate all future disputes arising from the use or acceptance of a sperm donor, a written sperm donor agreement can help resolve many future disputes such as:
In most states, the sperm donor statues exist to relieve the sperm donor of any parental responsibility created by the artificial insemination procedure, the sperm donor does not have visitation rights or decision-making rights in the raising of the child, and will not be responsible for any of the child’s expenses.
Without a sperm donor agreement, the potential exists for future hassle and grief for all parties involved. A properly drafted sperm donor agreement can at least provide a roadmap for the future by setting forth the essential terms and conditions to the artificial insemination, and protecting the rights of all parties involved.
Components of a Sperm Donor Contract
A typical sperm donor agreement will include the following key elements:
Donor Rights: Legal donors typically do not have parental rights or obligations to any child conceived as a result of his donation. The agreement should explicitly set out that the donor waives all parental rights and obligations. Absent an agreement, the donation of sperm does not automatically make someone a parent. In these cases, the sperm donor may seek parenting time with a child conceived with his sperm, suppose that child was conceived through sexual intercourse (instead of through artificial insemination).
Recipient Rights: Typically, the recipient agrees that the child will have no claims against the donor for support or inheritance.
Confidentiality: Because sperm donation will likely have a significant impact on both the donor and in some cases the child, the agreement might limit disclosure of information and communication about the matter. The agreement might also require that the recipient artistically represent the origin of the child or explicitly identifies him or her as a child of artificial insemination.
Child Custody: If necessary, the parties might designate custody and end-of-life decisions should some disaster or tragedy occurred to the donor. These provisions may provide that a third party will care for a child of the donor if the donor becomes incapacitated.
Legal Pertinence and Implications
Sperm donor agreements, while not universally governed by law, can have lasting legal implications. Each state may have different regulations that dictate the responsibilities and rights between a sperm donor and a recipient. For instance, in many states, sperm donors who contribute through a sperm bank can be legally considered "donors" without any visitation or financial obligations attached, provided that a contract is entered into with the bank. However, in some states, some courts consider the donor to still have parental rights. This is why state laws and regulations—such as the A.R.T. (assisted reproductive technology) Parentage Act and U.P.A.A. (uniform parentage act)—each play a large role in determinations around a donor’s parental rights. Your family law attorney should have a deep familiarity with the A.R.T. Parentage Act and the U.P.A.A.
A contractual sperm donor agreement can sometimes even be referred to as a "co-parenting agreement," so named for a sperm donor who either intends to play a parenting role as well as the role of an anonymous donor or who intends to donate his sperm in a way that offers to identify himself to the child later in life. Despite the designation, a co-parenting agreement does not in any way apply to all donor contracts. Just like any other co-parenting agreement, one might expect aspects such as an identification of roles and responsibilities and/or a detailed visitation schedule, but with no actual co-parenting that guarantees that the donor will be a parent.
It is important that sperm donor agreements detail the donor’s involvement in the child’s life in a way that each party feels comfortable. Too often, motherhood leaves parties with different views of whether and how involved the donor parent should be. The mother might believe that by signing the sperm donor agreement, the donor has relinquished all parental rights. The donor might believe that he is entitled to greater involvement in the child’s life. While a contract goes a long way toward making these expectations clear, a sperm donor agreement that is only reached once a child is already born likely will not be legally enforceable. The best time to contact your family law attorney about a sperm donor agreement is before conception has taken place.
Role of Sperm Banks and Donor Agencies
Sperm banks, sperm agencies, and other facilitators of the donation process come into play as soon as a match is made between the prospective parents and the donor, regardless of whether a donation will occur and what the arrangements may be. Sperm donors may resent "legalistic" requirements. They perceive themselves as supplying a biological ingredient on an equal basis with egg donors, but typically without the same, if any, legal protections as a surrogate. However, at least in the United States, sperm donors are fully protected under the law. This includes strict third-party donor anonymity, as well as statutory disclaimers for those sperm donors who opt to decline their parental rights ("the release of parental rights"), binding themselves not to attempt any subsequent contact with the child and relinquishing all parental claims — these disclaimers themselves having been developed over many years and many contested cases. The Department of Health emphasizes the need for the donation process to include a legal arrangement that both the sperm donor and the parent(s) sign upon donation. A donor must germane to the established record-keeping and contract rules, and he must be prepared to travel, barring unexpected circumstances (a sudden violent illness on the part of the donor, car accident, etc.). But the role of the sperm bank or agency goes beyond maintaining the records and contracts required by law. It must act as an intermediary, such as sending reminders for scheduled appointments. It may provide the prospective parents with regular updates on making arrangements for visits, consent forms, clinics, and other administrative requirements. Although some prospective parents and sperm donors prefer to correspond directly with each other, without an intermediary, the purpose of the intermediary is to make sure that all record-keeping portions of the process are completed for purposes of full legal compliance.
Advantages and Disadvantages for Donors and Intended Parents
In many cases, donor agreements can save both the donor and recipient from a dispute over issues of privacy, custody, child support, and decision making for the future of the child. However, such agreements are not mandatory in Canada, and some individuals may prefer to proceed without a lawyer. While this is ultimately a personal decision for donors and recipients to make, such a choice carries financial, emotional and ethical risks.
Without a contract or agreement, a sperm donor cannot claim parental status or responsibility over the resulting child. He will only be the child’s biological parent without further connection or obligation. If the parties decide to execute a donor agreement, the contract should be registered with the Children’s Registry pursuant to the provincial legislation in effect.
A formal agreement will set out the obligations of the donor, the recipient, and any other potential parent(s). Typical components of a sperm donor agreement include:
Sperm donor agreements can also be beneficial for other individuals involved, such as a new partner or spouse of an intended recipient parent. For instance, agreements that explicitly state the roles of all parties and also include consent language for a future spouse, can help to avoid any confusion, conflict, or financial disputes in the future .
In other jurisdictions, the rights of sperm donors (and the resulting children) are given high priority. For example, Oregon sperm donor law codifies that a donor who offers his sperm anonymously to a licensed facility for artificial insemination cannot be treated as the child’s parent. On the other hand, donors who donate their sperm directly to an intended recipient parent are charged with the duty of child support for the child in the future. If a donor intends to have no responsibilities towards the child, he must ensure that his anonymity is guaranteed when sperm is offered through a licensed facility.
Even more restrictive rules apply in various jurisdictions in the United States. According to California Family Code Section 7654, a donor who provides sperm to a licensed facility to be used for artificial insemination of a woman will not be the parent of a child conceiving as a result.
Legislation related to sperm donation is consistent in one key aspect: there is a strong likelihood that a sperm donor will not possess any legal rights or responsibilities towards a resulting child. When carrying out a donation, donors must assume that they will have no connection to the child, and will not have to deal with any legal claims (including claims for child support) after the donation occurs.
Creating a Sperm Donor Agreement
Drafting a sperm donor agreement is essential before sperm donation occurs in order to protect both the donor and recipient. The agreement should state the full names of the donor and the recipient(s), vital information about the sperm donor, the current and future living situations, and the donation terms. The agreement can also state whether or not the donor waives all parental rights, responsibilities, and privileges. After the birth it’s important to have a determination of paternity document signed by the donor. By having this signed, it shows that the donor will have no legal rights or responsibilities towards the child. This should be done once the sperm is inseminated into the recipient.
It’s always best to have a lawyer draft the agreement, as it minimizes any unintended disputes. Since the agreement ultimately protects the rights of the child, making it legally binding is crucial. Online templates often don’t contain the necessary language to fully execute on the purpose of the agreement. Alternatively, it’s preferred to make your own agreement, but it should be reviewed by an attorney. If you don’t have an attorney of your own, the recipient(s) and donor could ask the same attorney to review the agreement for a reasonable fee.
Common Questions Regarding Sperm Donor Agreements
Q: Am I legally the father to my child if I am a donor?
A: In Canada, sperm donors are not considered to be the legal father of a child conceived through donor sperm provided the donor has waived his rights and obligations as a parent. If this is not done, or where the donor has not waived his rights and obligations as a parent, the donor is presumed to be the father of the child, and has all the rights, privileges and obligations that a father has as a result of the birth of a child.
Q: Can a sperm donor have ongoing contact with a child resulting from his sperm?
A: This will depend on what is agreed to in the donor conception contract, which is entered into among the participants in the conception process. There are no laws that govern this type of arrangement, and so applicable family law issues will tend to be determined at the discretion of the parties in accordance with family law statutes and court orders , regardless of whether a donor conception contract is signed by the donor and parents.
Q: Am I legally the mother to my child if I am a recipient who has carried the baby conceived through donor sperm?
A: In Canada, the mother may either be the birth mother (the person who carries the baby), or the genetic mother (the person who provided the ova from which the baby is conceived). The birth mother will be presumed to be the mother of the child in most jurisdictions where she is born and will have therefore all the rights, privileges and obligations that a mother has as a result of the birth of a child.
Q: Once I sign a donor conception contract, can I change my mind and ask for my sperm back?
A: No. Once you sign a donor conception contract, you are giving up all your rights as the donor of sperm that is provided pursuant to the donor conception contract. If you wish to have a return of your sperm then you may want to consider below constructs in order to make that happen.
