An Overview of Sperm Donor Agreements
As artificial insemination has gained in popularity, sperm donor arrangements have increased. It is important for donors and recipients to understand the importance of sperm donor contracts. A contract should be made between the donor and the recipient to establish the terms under which a donor will donate sperm and the recipient will accept that donation. Such an agreement is not only enforceable, but it affords both parties peace of mind and defined expectations . A prospective donor should be aware of what a donor agreement entails. A prospective donor should also be aware of the fact that a sperm donor contract is not enough to relieve a donor from parental obligations. Whether the agreement protects the donor from parental obligations is determined by the state where the donor resides or, if the child is conceived and born in another state. No matter what state a donor resides in, it is advisable to establish a contract with a recipient to avoid claims for parental rights.
Essential Elements of a Sperm Donor Agreement
Key Components of a Sample Sperm Donor Contract
The specific provisions of an agreement will depend on the parties involved, but generally, a typical sperm donor contract includes certain key components. The most common issues addressed in a sperm donor contract are:
A. Confidentiality: While traditionally, there has been a strong preference for anonymity in child adoptions and surrogacy agreements, donor anonymity is less common in sperm donor contracts, particularly in cases where the donor is not anonymous to begin with, such as family members and friends donating sperm for couples suffering from infertility issues. In this regard, as a baseline matter, sperm donors may require that both their names and other identifying information be kept confidential, while also recognizing that such information may have to be disclosed to the courts and child welfare authorities in the unfortunate event of litigation or if any medical issues arise regarding the child.
B. Rights of the Parties: Generally speaking, donated sperm can only be used by the recipient/inseminator for artificial insemination and may not be used for in vitro fertilization without written consent of the sperm donor. Likewise, the sperm donor usually agrees to give up all his legal rights and privileges to the child and agree to relinquish any current and future parental obligations and responsibilities (e.g., child support, visitation). On the other end, recipients of the donated sperm must agree to not seek financial compensation from the sperm donor and to protect his anonymity in any related proceedings thereafter.
C. Right of the Child: A sperm donor contract may also contain a clause noting whether or not the donor waives the right of the child to contact the sperm donor (generally upon reaching the age of majority) and open a paternity action. Some sperm donors, for example, may be satisfied with the enforceability of the contract in regards to limiting their contact with the child, while other donors may require assurance that the child will never be able to locate them, such as in anonymous donation situations.
Legal Considerations and Safeguarding All Involved
When entering into a sperm donor agreement, all parties must be aware that there can be legal implications. Consider the following:
- The parties involved should have an attorney well versed in reproductive law or contracts draw up a contract so you are all clear regarding rights and obligations in order to avoid later disputes. It’s rare that people adversarially fight over this but it can happen. When it does, having the contract drawn up by a qualified attorney can save everyone a lot of heartache and expense.
- In many cases the donor is entitled to compensation beyond initial expenses. This can be used for reimbursement of expenses incurred when donating or maybe a donor fee if it is going to be a continuing situation – such as a sperm bank, surrogacy situation or continuous inseminations. There are sperm banks or agencies who facilitate the collection of sperm and then purchase the sperm from the donor. Of course the sperm bank is quite expensive since the sperm must be immediately frozen and maintained to keep it viable and safe for insemination.
- The agreement should address what parental rights the donor has if any and what rights he will retain. Parental rights can be very complicated and can arise in an artificial insemination situation or surrogacy. It comes down to intent and whether the donor and recipient parent knew that there would be a father for the child other than the Act of insemination donor. Many sperm donors don’t care after the fact if they have parenting rights. They simply want to donate sperm and move on with their lives. However, there are always those who see parenthood as a challenge not to be missed and want to assert parenting rights. The courts have settled these issues in many cases over the years with some legislation expected shortly, like it or not, Illinois still has some of the most stringent reproductive laws in the country.
Anonymous vs. Known Donor Agreements
Whether going through an agency or whether going to a sperm bank, contracts (referred to in the law as "collateral agreements") for use of an anonymous donor are a relatively straightforward affair. With anonymous donors, the intended parent or parents are referred to as the "recipient." The donor is referred to as the "donor." This is because the donor will not be known to the recipient. There is no "right" to refuse performing the sperm donation based on particular characteristics. Since there is no particular donor in mind, the contract merely authorizes the sperm bank or clinic to perform the donation for the recipient. A good anonymous donor contract will provide for an agreement as to number of donations, fees, transportation, medical insurance issues, confidentiality, privacy rights and changing of the documents if envisioned in the future. Typically, when assisted reproduction, including insemination or in vitro fertilization, is done using anonymous sperm, the sperm donor is not known to the intended parent. While an anonymous donor contract will usually be longer than a known donor contract and more comprehensive and detailed, the essence of the agreements is similar.
The issues and provisions covered in the contract will tend to be similar, but the more substantial issues in a known donor contract, not usually considered in an anonymous donor contract, involve the rights of the intended parent(s) and the donor over parenting and the rights of the child. For instance, a known donor contract will typically deal with establishing paternity and rights to parenting with the recipients and the donor. The rights of the unborn child might be expressly limited and discussed in a known donor contract (i.e. determining parentage and rights to inheritance). In contrast, an anonymous donor contract typically does not deal with these types of issues as the donor rights are unknown and do not really matter if a sperm donor is anonymous.
In addition, contracts with anonymous donors can set up a process for identifying a particular type of donor using non-identifying information. For example, an anonymous donor could be selected using traits such as height, weight, physical features, health history, ethnic background, etc. If the parent(s) select an anonymous donor, they might sign a separate non-identifying information disclosure that describes the physical characteristics, traits and background of the donor.
Creating an All-Inclusive Sperm Donor Agreement
In light of the differences among states regarding the enforceability of sperm donor contracts and obligations of the parties, the prospective donor and recipients should discuss the matter with an attorney and consider entering a written contract in which the parties agree to an enforcement standard (e.g., what obligations/personal duties will be expected of and owed by the sperm donor and by the recipient). Without adequate prior planning, the recipient may discover too late that she is not necessarily entitled to expect the sperm donor to acknowledge his paternal status and/or support the resulting offspring.
The mere existence of a contract among the parties does not guarantee that the state will enforce it. Even when the contract is written, states may vary widely in their approach to enforcing a contract. Among states, there are two prevalent approaches to the enforceability of sperm donor contracts in cases where no assisted reproduction statute applies. Many courts have adopted the rule that a contract between an unmarried, nonspouse donor and a recipient is enforceable except as to the issue of child support. Other court decisions invalidate the contract in its entirety or enforce the contract only to the extent that it is not inconsistent with the involuntary termination of parentage.
The donor and recipients may wish to consider choosing the governing law to be applied to any dispute that arises out of a sperm donor agreement or the disposition of any resulting progeny. The donor and recipients also should consider which court or courts (e.g. state or federal) will have jurisdiction over the case , regardless of the nature or location of the transactions and disclosures being covered in the contract.
If a prospective sperm donor contract is created by completing a printed form, the donor and recipients should strongly consider having an experienced attorney review the contract to determine whether: If an existing sperm donor agreement is to be modified in any way, the parties should also consider consulting an attorney or using a sample donor agreement to determine which portions of the new and old agreements should be deleted or incorporated into the modified agreement and in what form.
The following are suggestions regarding assisting the sperm donor or recipients in drafting a comprehensive agreement that meets the needs of all parties: The purpose for drawing a contract is to establish an enforceable agreement as to the expectations of the parties. If the parties choose to enter into an agreement, they may use a sample sperm donor contract to help them draft a comprehensive and legally enforceable agreement. But the contract should still be reviewed by an attorney with experience in drafting agreements or contracts of this type.
Real-World Examples and Case Studies
Over the years, clients have come to me with all sorts of problems arising out of sperm donation and surrogacy. I will discuss two examples. First, a young couple conceived through sperm donation were faced with a terrifying proposition when the sperm donor filed in court to obtain full parental rights over the child. The donor argued that, in the absence of a formal written sperm donor contract clearly spelling out the terms of the arrangement, he was entitled to equal and shared parenting under the law. The written contract we prepared anticipated this very scenario, and an application was brought to court in the presence of the donor at our request, where the judge was quite reasonable and granted orders striking the father’s application and dismissed the paternity claim on behalf of the donor. In the end, the donor was ordered to pay costs for his application. The lesson here is obvious…you should have a written sperm donor consent agreement as protection for the parties, as well as the resulting child.
In the second example, two women from Canada traveled to the United States to conceive a child with a sperm donor. In the process of the honeymoon conception trip south of the border, one of the women (the birth mother) became pregnant with the help of the donor. A few months down the line after the birth, the two women travelled back to the United States for a vacation with the newborn. While on vacation the birth mother became ill and was not able to return to Canada to be with the baby. The birth mother asked her partner to return to Canada with the baby, and the partner did return to Canada alone. Shortly thereafter, the United States immigration department called the parties to advise them that the partner would need to come to the United States to obtain a paternity test and suitable documentation in order to leave the United States with the baby. A paternity test was done, and a birth certificate naming the birth mother was issued. A new travel document was sought, but the immigration department would not issue a travel document for the child. The child is now three years old. The birth mother remains in Canada with the child, but must travel to the United States to see the child, and the partner cannot return to the United States to see her child. This example highlights the importance of having the right documentation prepared for both Canadian and United States laws when traveling with your donor for surgery.
Seeking Advice from Legal Professionals
Sperm donor contracts are no joking matter. If you have already chosen to have a child using the support of a sperm donor, then you have made a big decision already that must be documented properly with the right contract. If you already have a contract that you are ready to use for an upcoming insemination or IVF procedure , you may wish to ask an attorney about the provisions. There are plenty of sperm donor contract templates online, but there could be inadequate or missing information. You absolutely want to make it as difficult as possible for a donator to try to take custody of your child down the line or do something that would be financially disadvantageous to you or your child by trying to claim paternity.