What Is a Sperm Donor Agreement?
A sperm donor agreement is essentially a contract whereby a sperm donor enters into a legal agreement with a recipient or recipients, spelling out each party’s rights and obligations in relation to the provision of sperm by the donor for use insemination for the purpose of conception and potential resulting medical and legal issues. In other words, sperm donor agreements are drafted to clarify the legal relationship between a donor and the recipient or recipients of such donation, and to address the rights and obligations of all parties involved. They generally apply to the provision of sperm by a healthy, properly and well screened, anonymous or non-identifying donor , through an in vitro fertilisation agent. Donor agreements vary in their complexity and may be customized to suit the needs of the parties to the contract and the jurisdiction in which it is being prepared. Many jurisdictions have forced physicians to offer private sperm donor clients an agreement, which in effect, grants the donor more than just a charitable goodwill act of service, by requiring the donor to fulfill certain obligations such as reporting back to the doctor, etc. By providing the donors with an agreement, it also protects the donors’ interests and provides them some limited and non-enforceable recourse should the recipient not act in accordance with the agreement.
What are the Necessary Elements of a Sperm Donor Contract?
To be enforceable, a sperm donor contract must first be in writing and signed by both the donor and the recipients before any treatment has taken place. The contract should contain the following basic components: Rights and Obligations – This should detail the rights and obligations of the parties, including the extent to which the donor will waive his parental rights, if at all. If an anonymous donor is desired, this must be expressly stated in the contract. It should be clear to the donor that he is surrendering all parental rights with regard to any resulting child or children. Parental Rights – The parties should discuss and detail the method of insemination that will be used, the procedures that will be put in place in the event that a resultant child seeks to obtain identifying information about the donor, and the level of involvement, if any, that the donor will have in the child’s life. Financial Obligations – The parties should address whether or not the donor will be responsible for child support or other expenses pertaining to the care or support of any resultant children, or whether all expenses, including medical expenses, will be the obligation of the recipients. Federal Support Obligations – A sperm donor may be entitled to an income tax credit for any payments he is making for the support of a child if he has been forced to pay such an obligation due to a court order. Financial and Estate Issues – The parties should discuss and detail the ownership title of stocks, bonds, real estate, bank accounts, vehicles, and business interests. Confidentiality – The parties should discuss if they intend that the donor be anonymous and the extent to which the donor will be allowed to know the child. They should also discuss whether or not the donors last name will be known to the child, whether the donor will have access to his photos, whether the child will know details about the donor’s life, and whether the child will know the details surrounding his or her conception.
Rights of Donor and Recipients
The legal implications for both donors and recipients are critical to understanding from a legal perspective. In most jurisdictions, sperm donors are not automatically considered parents of children conceived through artificial insemination or in utero fertilization procedures. Of particular concern, however, are donors who do not fulfill the requirements of anonymous donation. For example, a donor who acts as a "known donor" or who personally pays a recipient to fulfill the donation, significantly weakens his or her defense against claims of parental rights and obligations. Since the nature and intent of all donations must be made clear and unambiguous between the parties from the outset of the donation, the transfer of both the rights and obligations stemming from paternity are best avoided by meeting specific legal formalities. Such transfer typically precludes claims of damages for child support, visitation, and custody. Written contractual agreements that specify the nature of the donation, as well as the rights and obligations of the donor, offer the best means to ensure the validity of the artificial insemination and to protect both the stated and implied wishes of the parties.
Applicable State and Foreign Laws
Laws and regulations concerning sperm donor agreements vary by state or country, with some jurisdictions having more comprehensive requirements and others having little or no regulations at all. In the United States, for example, many states have adopted the Uniform Parentage Act (UPA) which addresses the existence of a sperm donor agreement; however, several states have yet to adopt any such legislation. In the absence of state law on the issue, rulings are often based on contract principles. In addition to state law, federal law plays a role in sperm donation contracts. Regulations promulgated by the FDA and the Centers for Disease Control and Prevention (CDC) govern the contribution of semen to assisted reproductive technologies. The purpose of these regulations is to prevent the transmission of communicable diseases through the contribution of semen. To that end, the FDA requires records to be kept of the donation process to protect against communicable disease. Individual sperm banks, however, differ in their disclosures to the donor regarding the use (or lack thereof) of a sperm donor agreement. Internationally, regulations within the EU on the following points offer some guidance: Due to the complexities of international law, individuals interested in international gamete donation should conduct research on the specific laws and requirements of their country or states of residence. Even states within the same country may have different laws and requirements with regard to donor donation.
How to Write a Sperm Donor Agreement
When drafting a sperm donor agreement it is important to consult with your sperm donor or a family law lawyer who specializes in reproductive law. While the agreement itself does not have to be prepared by a lawyer, there are many points that must be included that are not necessarily obvious. This is even more important when the sperm donor is considered a "known donor" as opposed to an anonymous "stranger". In addition, if you or your partner is a lesbian and the donor presently has rights of consent to the conception of the child, the agreement can be used to completely terminate those rights in accordance with s. 10(1) of the Children’s Law Reform Act.
Assuming the donor cannot be found and consent is either terminated or the donor has no rights of consent:
a) Indemnity. Much like any other indemnity clause, it should contain clear language stating that the donor is indemnifying the recipient, and that the recipient and the child are the beneficiaries of the indemnity. The language should state that the donor is indemnifying the recipient and child in the event of claims made against the donor by the child in the future in relation to access or support.
b) Child Support. This section should contain clear language stating that the donor will not be liable in any way for the child’s support and that this is clearly understood by both parties.
c) Medical Emergencies. In a modern age where both parents may wish to be involved in the child’s medical decisions , it is recommended that the agreement address medical concerns and advise the parties that the child’s medical or health needs will be addressed in accordance with the protocol adopted by the child’s physician, subject to the right of either party to seek a second opinion in their sole discretion.
d) Termination of Agreement. Generally, agreements will terminate at the age of majority of the child, but it can be useful to include a specific termination date (for example: the agreement will terminate in five years). Alternatively, if there is no intention to have contact with the child, the parties can agree that the agreement will terminate 48 hours after a notice of termination is sent to the donor by the recipient.
e) Consent. Large surrogacy and sperm bank agencies have specific clauses that deal with the consent and disclaimer of liability in the event an insemination is unsuccessful or the child is born with a medical or genetic condition. It is recommended that you contemplate including similar language in your agreement.
It is also recommended that the donor and recipient(s) obtain independent legal advice.
Examples of Sperm Donor Agreements
In a widely followed 2003 case from Michigan’s Court of Appeals, a sperm donor—here, the biological father—was not entitled to be awarded a parental right. In the case, the sperm donor sought joint legal custody of the child after the birth mother had filed a complaint about him not exercising his access time with their son. In holding against the sperm donor, the court ruled that it was clearly the intent of the drafters of the statute in question to exclude from its terms any donation made pursuant to a written agreement that, for example, provides for the artificial insemination of a woman, supplies of semen provided by a donor, or involves of a donor being compensated for his donation. The court held that, because there was a written agreement between the two about the child—as well as the donation of sperm—the donor did not have parental rights.
In another even more recent case, in a 2013 Texas Supreme Court decision, the court addressed the question of whether a marriage-like relationship existed between the nonbiological mother and a child conceived through artificial donor insemination. The court, in that case, held that, notwithstanding the absence of the biological mother, ________________ would retain the same rights, benefits, and interests as the two other recognized parents under the Family Code, but "would be required to share those rights, benefits, and interests with" the biological mother. As is the case in many modern family law matters, courts will highlight the intentions of the parties—as expressed in a formal document—to determine the outcome of legal disputes. In this recent, high-profile case, the court used the terms of the sperm donor agreement to rule on what would essentially be the rights of a nonbiological parent.
These examples highlight how courts continue to use the language of the documents to effect marriage-like terms in a high-profile family law custody matter.
Pitfalls Common in Sperm Donor Agreements
Common mistakes when drafting sperm donor contracts can have serious legal implications for both donors and recipients. One of the most frequent oversights is the failure to clearly define the boundaries of the donor-recipient relationship in the agreement. Vague language can lead to misunderstandings later on.
Another common mistake is not considering future contingencies that could arise. Will the Sperm Donor continue to have rights or obligations towards the child after their birth, or will those responsibilities be terminated? Framing these terms in the Sperm Donor Agreement Contract is crucial for avoiding future court room disputes.
Similarly , the remaining anonymity of the donor is often insufficiently addressed. If intended parents are planning on informing their future children about their origins, this should be explicitly laid out in the contract.
Finally, many Sperm Donor Agreements do not address issues of health and medical history. The Intended Parents should request this information from their donor, and try to frame this in such a way that maintains the donor’s right to anonymity (as an example, they should refer to donor’s health as if it were "Sperm" health).