An article by Deborah Forman, Esq. published by the American Fertility Association on May 9, 2011
Melissa is a single woman who has long desired to have a child. She asks a long time friend, Jim, to donate sperm. He agrees, on the understanding that he will have no rights or responsibilities regarding the child. When the child is 5, Melissa loses her job and files an action in family court against Jim, seeking child support.
Caitlin and Samantha are lesbians in a long-term, committed relationship. They desire to start a family. They approach Samantha’s brother Nick about donating his sperm to inseminate Caitlin. He agrees, on the understanding that he will not be considered a parent or have to pay child support, but that he will have ongoing contact with the child. When the child is two, Caitlin and Samantha break up. Caitlin refuses to allow Nick to visit the child. He goes to court to establish paternity and visitation.
These are just two of the myriad situations that can arise when using sperm from a known donor. For more than a century, individuals and couples dealing with male infertility have turned to artificial insemination using donor sperm to have children. In more recent decades, single women and lesbians have created families using donor sperm. In most cases in the U.S., individuals and couples obtain sperm from anonymous donors through a sperm bank. However, for various reasons, some people prefer to use sperm from a known donor. They may desire to have greater information about the donor’s background and personality or they may hope to preserve the opportunity for the child to have contact with the donor in the future. Some women seek out known donors with the expectation that the donor will act as a male role model and have an ongoing, albeit limited, role in the child’s life.
Caitlin and Samantha are lesbians in a long-term, committed relationship. They desire to start a family. They approach Samantha’s brother Nick about donating his sperm to inseminate Caitlin. He agrees, on the understanding that he will not be considered a parent or have to pay child support, but that he will have ongoing contact with the child. When the child is two, Caitlin and Samantha break up. Caitlin refuses to allow Nick to visit the child. He goes to court to establish paternity and visitation.
These are just two of the myriad situations that can arise when using sperm from a known donor. For more than a century, individuals and couples dealing with male infertility have turned to artificial insemination using donor sperm to have children. In more recent decades, single women and lesbians have created families using donor sperm. In most cases in the U.S., individuals and couples obtain sperm from anonymous donors through a sperm bank. However, for various reasons, some people prefer to use sperm from a known donor. They may desire to have greater information about the donor’s background and personality or they may hope to preserve the opportunity for the child to have contact with the donor in the future. Some women seek out known donors with the expectation that the donor will act as a male role model and have an ongoing, albeit limited, role in the child’s life.
Ultimately, the decision whether to use sperm from a known donor is a deeply personal one, but also one that has potentially significant legal consequences for the donor, the mother(s) and the children who result. As with many types of third party assisted reproduction, the law governing the rights and obligations of known sperm donors is complex and varies significantly among jurisdictions, indeed even sometimes within a given jurisdiction. This article will provide an overview of the relevant laws governing parentage when women use sperm from a known donor to start a family and will suggest ways of minimizing the legal risks involved.
The Uniform Parentage Act and Statutes Governing Sperm Donation
Many states have enacted legislation governing parentage and sperm donation. Nearly half the states have adopted some version of the Uniform Parentage Act (UPA), first promulgated in 1973. This type of statute typically provides that a husband who consents in writing to the insemination of his wife under the supervision of a physician is considered the legal father of any resulting child. The statues also make clear that a donor who provides semen to a licensed physician for use in artificial insemination of someone other than his wife is not considered a legal father of the child. Some states have now adopted a version of the UPA revised in 2000, which does not require that the donor provide the sperm to a licensed physician to be considered a non-parent. In addition, some states have statutes that allow the parties to avoid this presumption of non-parenthood if the parties enter into a written agreement that the donor will have parental rights.
The artificial insemination (AI) statutes do not expressly distinguish between anonymous donors and known donors, and complications have arisen when the woman uses a known donor. In some cases, parties using known donors do not comply with the statute, for example, the woman performs the insemination at home, in others, the woman or sperm provider disputes the existence of an agreement regarding parentage or their conduct is inconsistent with the claim of parental or donor status. Difficulties also arise in states that have no statute that specifically addresses the rights of sperm donors and recipients. While the courts that have considered these cases have not agreed on the reasoning or outcome, certain key points can be gleaned from the cases.
The artificial insemination (AI) statutes do not expressly distinguish between anonymous donors and known donors, and complications have arisen when the woman uses a known donor. In some cases, parties using known donors do not comply with the statute, for example, the woman performs the insemination at home, in others, the woman or sperm provider disputes the existence of an agreement regarding parentage or their conduct is inconsistent with the claim of parental or donor status. Difficulties also arise in states that have no statute that specifically addresses the rights of sperm donors and recipients. While the courts that have considered these cases have not agreed on the reasoning or outcome, certain key points can be gleaned from the cases.
Using A Physician Can Make A Difference
In several cases, problems arose because the recipient did not involve a physician in the insemination and thus failed to comply with the AI statute. For example, in the California case of Jhordan C. v. Mary K. (1986), the court allowed a claim of paternity by a man who had provided semen to inseminate a friend. Because the woman performed the insemination at home, she could not rely on the AI statute to extinguish the sperm provider’s parental rights. The statute only applied if the semen was provided to a licensed physician. Courts in Ohio and New Mexico have similarly held that failure to involve a physician in the insemination took the parties outside the protection of the statute and allowed the sperm provider to claim parental rights. Indeed a few states may prohibit artificial insemination without physician supervision, though violation of such a law does not appear to determine the parental status of the donor.
By contrast, using a physician can protect the sperm provider’s donor status, in some instances, even where sexual relations between the donor and mother have taken place. In Steven S. v. Deborah D. (2005), a California appellate court held that the sperm provider was a donor with no parental status because the child was conceived by artificial insemination performed by a physician. The donor argued that he and the mother had attempted to conceive by sexual intercourse prior to this insemination and that the mother acknowledged him and the father and allowed him to celebrate the child’s birth. Nonetheless, the court concluded that the statute was clear and provision of the semen to a physician extinguished his potential rights as a father.
Agreements Are Important But Not Necessarily Dispositive
Even if the parties use a physician, some states expressly allow the parties to change the status of a sperm provider from donor to father, based on a contract. However, again, parties need to pay careful attention to the statutory requirements if they wish to exercise this option, as a sperm provider discovered the hard way in a Kansas case. In In the Interest of K.M.H. (KS 2007), the mother did involve a physician in the insemination, triggering application of the statute, which denied the donor parental rights. However, the donor claimed that he and the mother had an oral agreement that he would act as father to any resulting child. The Kansas AI statute allowed the parties to avoid the statutory bar on parental rights for donors, but only if they agreed in writing. Hence, the court rejected the sperm provider’s claim because it was based on an oral agreement. Obviously in a state with this kind of statute, parties wishing the sperm provider to assume parental rights and responsibilities should sign a written agreement.
Even if the parties use a physician, some states expressly allow the parties to change the status of a sperm provider from donor to father, based on a contract. However, again, parties need to pay careful attention to the statutory requirements if they wish to exercise this option, as a sperm provider discovered the hard way in a Kansas case. In In the Interest of K.M.H. (KS 2007), the mother did involve a physician in the insemination, triggering application of the statute, which denied the donor parental rights. However, the donor claimed that he and the mother had an oral agreement that he would act as father to any resulting child. The Kansas AI statute allowed the parties to avoid the statutory bar on parental rights for donors, but only if they agreed in writing. Hence, the court rejected the sperm provider’s claim because it was based on an oral agreement. Obviously in a state with this kind of statute, parties wishing the sperm provider to assume parental rights and responsibilities should sign a written agreement.
A similar result occurred in a Texas case. In In the Interest of H.C.S. (2006)), a Texas appellate court ruled that a man who provided semen to inseminate his sister’s partner did not have standing under the Texas insemination statute to maintain an action to establish paternity, despite his claim of an oral agreement that he would be involved in the child’s life. In order to be considered a legal father, a male donor and the mother would have had to sign and file an acknowledgment of paternity, which was not done. However, another Texas court, in In re Sharon Elizabeth Sullivan (2005), had ruled a year earlier that a sperm provider did have standing to try to establish paternity, without reaching the merits of whether he would be considered a donor or a father, given the existence of a written “co-parenting” agreement.
In many states, there is no statutory guidance about the impact of contracts on the parental status of known sperm providers, and the cases have differed in their treatment of these contracts. In several instances, courts have relied on contracts between the parties to resolve the donor’s parental status. A Florida court looked to a written agreement to determine that the sperm provider was a donor in Lamaritata v. Lucas (2002). A Florida statute declared that sperm donors had no parental rights. Although the statute did not define “sperm donor,” the sperm provider and the recipient had entered into a written agreement that identified him as a sperm “donor.” That designation was sufficient to conclude that the statute applied.
In two other cases, courts have found that the existence of a contract between the sperm provider and recipient transformed the provider from donor to father. In In the Interest of R.C. (1989), the Colorado Supreme Court held that the Colorado artificial insemination statute would not apply if the donor proved, as he alleged, that he and the mother had an agreement that he would act as parent and that their conduct was consistent with that assertion. In that case, the sperm provider could claim paternity. An Oregon case that same year, McIntyre v. Crouch (1989), held that the sperm provider was a donor under Oregon’s AI statute (despite not using a physician). However, the court also found that if he could prove an agreement to act as a father, he would be able to claim paternity. To apply the donor statute in that situation would violate his constitutional right to due process.
In a Pennsylvania case, the existence of a contract protected the donor from a claim for child support. In Ferguson v. McKiernan (2007), a friend who had previously been romantically involved with the mother provided semen to a clinic for her insemination. The donor and mother entered into a contract relieving him of any parental rights or responsibilities. Five years after the child’s birth, the mother sought child support. The lower court initially found in her favor, relying on the fairly universal rule that a contract to waive child support where the child is conceived through intercourse is not enforceable. However, the Pennsylvania Supreme Court reversed and ruled that the contract was enforceable. Although Pennsylvania does not have an AI statute clarifying the rights of donors and recipients, the court found no meaningful distinction between the circumstances of this insemination (using a physician, with a contract) and anonymous donation, where the donor would be protected from claims for support.
In a Pennsylvania case, the existence of a contract protected the donor from a claim for child support. In Ferguson v. McKiernan (2007), a friend who had previously been romantically involved with the mother provided semen to a clinic for her insemination. The donor and mother entered into a contract relieving him of any parental rights or responsibilities. Five years after the child’s birth, the mother sought child support. The lower court initially found in her favor, relying on the fairly universal rule that a contract to waive child support where the child is conceived through intercourse is not enforceable. However, the Pennsylvania Supreme Court reversed and ruled that the contract was enforceable. Although Pennsylvania does not have an AI statute clarifying the rights of donors and recipients, the court found no meaningful distinction between the circumstances of this insemination (using a physician, with a contract) and anonymous donation, where the donor would be protected from claims for support.
In the most recent case to consider this issue, the existence and terms of the contract between the recipient mother and sperm donor proved critical and led to a rather startling result. In Paternity of M.F. and C.F. (Indiana 2010), a man agreed to provide semen to a friend and her life partner for the friend to conceive a child. The parties signed a contract relieving the donor of all parental rights and responsibilities. The insemination was successful, resulting in the birth of M.F. Seven years later, mother had a second child, C.F., who was also the biological child of the donor. The mother’s relationship with her partner subsequently ended, and she sought public assistance. The County then filed an action of her behalf against the sperm provider to establish paternity and support. Although Indiana does not have an AI statute, the court looked to the UPA for guidance and held that the contract relieving the donor of parental rights and responsibilities was valid if the semen had been provided to physician and if the parties had executed a sufficiently thorough and formalized written contract. In this case, the lengthy and sophisticated contract, which had been drafted by an attorney, was sufficient to be enforceable. The parties disputed the manner of insemination, but the court placed the burden on the party seeking to avoid contract—the mother. She failed to prove that the insemination occurred by intercourse and without a physician, so the court found the contract was enforceable. However, the contract was entered into shortly before the birth of the first child and only referenced that child. The parties did not execute another agreement before the birth of the second child. In the absence of a contract governing the second child, the sperm provider would be considered a father and liable for child support. Hence he was a donor to one child and a father to the other!
Attempts to Carve Out a Limited Role for the Donor Can Backfire
In one of the earlier cases, Thomas S. v. Robin Y. (NY 1994), a woman asked a gay friend to provide semen for her to conceive a child to raise with her lesbian partner. The woman inseminated herself and a child resulted. Consistent with an oral agreement with the mother, the donor saw the child occasionally over the years until a dispute arose with the mother about a possible trip the donor wanted to take with the daughter. He subsequently filed suit to establish paternity and visitation. The New York Court of Appeals ruled in his favor, finding that he was the biological father of the child and that the mother was “equitably estopped” from challenging his paternity. In other words, because she had fostered his relationship with the child, she could not now deny the interest and concern the donor showed in his child’s life to argue that his rights should be terminated.
[EDIT: The donor did not win this paternity suit, as he had not shown any parental intent in the first 10 years of the child's life. Source: https://scholar.google.com/scholar_case?case=3201837129986048433&q=Thomas+S.+v.+Robin+Y.&hl=en&as_sdt=6,43&as_vis=1]
More recently, a New Mexico court found that agreement to absolve a sperm provider of child support obligations was unenforceable where the contract allowed for the provider’s involvement in the child’s life. In Mintz v. Zoernig (2008), the donor had provided semen to a friend, who inseminated herself. At the time, the donor agreed in writing to act as a male role model for the child, while allowing the mother to be the primary parent. The agreement further provided that the donor would have no obligation for child support. The parties entered into a similar oral agreement prior to a second donation, which also resulted in a child. Some years later, the mother filed a paternity action, seeking child support. Because a physician was not involved in either insemination, the AI statute extinguishing donor parental rights and responsibilities was not applicable. The court further found that the contracts were not enforceable because they allowed the donor to enjoy the rights of parenthood without the responsibilities. The court distinguished the Pennsylvania case discussed above (Ferguson), where the parties used a physician and the contract absolved the donor of all parental rights and responsibilities in the contract.
Conclusion
Clearly, there is no uniformity in the law governing parental rights and responsibilities of sperm donors and the choice carries risks for both the donor and the mother. However, participants can take steps to decrease those risks. To maximize the likelihood that your intentions regarding parentage will be honored in the event of a future dispute, parties contemplating use of a known donor should consider the following:
1. Know your state’s law regarding sperm donation and follow its requirements as closely as possible. The best way to do this is to consult an attorney who will be able to advise you about the law in your particular state.
2. If your goal is to use a known donor who will have no parental rights or responsibilities, have the donor provide the semen sample to a physician. If your goal is to co-parent with your sperm provider, you may still wish to have the procedure performed by a physician for medical or other reasons. In either case, be sure that any consent forms you sign at the clinic are consistent with your intentions regarding parental status.
3. Hire an attorney to draft a written contract delineating the rights and responsibilities of the sperm provider, but recognize that not all courts will enforce these agreements. Be especially wary of oral agreements. They invite “he said-she said” disputes about the terms of the agreement. In addition, for those seeking a donor without parental status, oral agreements can in some states provide a basis for the donor to seek parental status. On the other hand, for parties envisioning the sperm provider as a parent, oral agreements may be insufficient to avoid the statutory bar to parenthood for donors.
4. Even written agreements have limits. An agreement that seeks to relieve a donor of financial responsibilities while preserving some limited role for him in the child’s life is particularly vulnerable to attack and may result in a finding of paternity.
