What is a Sperm Donor Agreement?
What is a sperm donor agreement? Such an agreement, sometimes called a waiver, contract, or like kind of document, is signed between a donor (male) and a woman who is seeking to be pregnant, as the intended parent. The document establishes the legal framework for the donation between them. The agreement defines the legal rights and responsibilities of both parties. The intention of the document is to protect the donor from being responsible for the children conceived outside of a relationship with the woman. This is meant to protect the woman as the intended parent from a donor attempting to claim parental rights over any resulting children. The agreement can also define the nature of the relationship between the parties. It does not have to be anonymous, but the information is usually kept confidential . This agreement can specify a variety of things, primarily that the donor relinquishes all future claims to genetic offspring (the children). It usually deals with issues such as parenting rights, support, custody, guardianship, and inheritance. It establishes the donors rights vis a vis the children and vice versa. The donor, under California law, will still have the opportunity to challenge the agreement, and can do so in court. The agreement can be a good well thought out starting point for both parties. It is certainly useful for intended families for clarity around important issues. California law specifically deals with sperm donor agreements. Other states do not have such a statute, and Courts do take the time to evaluate the parties relationship at the time of the sperm donation, and not just at the time of the dispute.
Sperm Donor Agreement Essential Elements
When it comes to sperm donor agreements, the details and elements can change from state to state, but in general, a legal sperm donor agreement should address at least the following:
Consent
The contract should start with consent from the donor. It should be agreed that the sperm donor is not married or in a registered domestic partnership and is consenting to use this sperm for the purposes that are outlined in the agreement without compensation. There just needs to be written permission for the sperm to be used.
Confidentiality
All parties involved in the donation should agree that the agreement will be kept strictly confidential. Neither the donor nor the parties that received the sperm can disclose any information about the other without consent that is in writing.
Parental Rights
Parental rights should be expressly stated in the agreement. In most cases, sperm donors do not intend to be the parent of the resulting child or have any responsibilities. This should be something that is clearly spelled out. On the flip side, potential parents should be aware that even though they and the donor may have the intent for the donor to have no parental rights, if the sperm was donated from a sexual encounter, they could be considered the father.
Financial Responsibility
It should be explicit in the agreement that the donor is not financially responsible for the resulting child. That means they can’t be named on the birth certificate, they don’t have to pay child support or health insurance, or be involved in the child’s life in other ways.
Waiver of Parental Rights Explained
A common phrase that comes up in Sperm Donor Agreements is that the donor "waives his right to parental rights." So what does that really mean and why would a donor need to do this? And does he need to do more to preserve his own rights as a parent over the child born from the donation? The waiver of parental rights is essentially an acknowledgement on the part of the dad that he is ceding all paternal rights and obligations to the intended parents. The donor no longer has the right to determine custodial time, to receive or pay child support, to choose health care or education, or to make parenting decisions on behalf of the child. The intended parents will have the legal right to make decisions regarding the child free and clear of the donor.
This rate of legal interference so often seen with courts regarding sperm donation is borderline against public policy. Courts dislike anything that may interfere with the traditional family unit and co-parenting arrangements, either during the relationship or after a divorce. At best, the waiver provides the absolute assurance that there is no parental obligation that can be imposed on the donor after the fact.
In order for the agreement to be enforceable with all third parties, the waiver must also be adopted. While the donor and intended parents can actually sign pretty much any document and call it a contract, a waiver agreement is not enforceable throughout the province and therefore has to be brought before a family law court. The judge will review the agreement, and usually interviews all parties involved, to ensure that the provisions in the agreement are in the best interest of the child. Assuming the court agrees, the waiver is made an order of the court and is then enforceable against all third parties without having to go through the courts system.
Some parents may ask if it’s necessary to include the waiver in the agreement. It can actually be optional in certain instances. Some people want to ensure that if the relationship fails and the parties separate, the donor cannot move to claim any kind of co-parenting right over the child. An example of this is where a known donor has inseminated an ex-girlfriend but two or three years later has grown an attachment to the child and tries to claim a relationship, or a right to the child, because they contributed genetic material.
The only real difference of the waiver versus an adoption order is that waiver of parental rights does not mean the donar actually adopts the child. This means that the biological father will still remain identifiable, unlike the adoption, where the child becomes the legal child of both parents. If the donor wants to remain as an identifiable father, the waiver is enough.
Considerations for Drafting a Sperm Donor Agreement
In drafting a sperm donor agreement, the potential for litigation looms large. States and localities differ widely in how they track and regulate infertility issues, and sperm donor contracts are no exception. Especially in the many states, such as Florida and New Hampshire, where either maternal or paternal status for donor insemination is unclear, the legal consequences of an agreement must be carefully considered. For example, in Massachusetts the law clearly favors anonymity for donors and does not allow access to information for either the parties to an agreement or to children conceived using the sperm. Unresolved conflict of law issues may be a concern if one of the parties to the agreement lives outside of the state or local area, particularly if those statutes differ from the location where insemination will occur. If the matter does go to court, a judge may not consider what is in the best interests of the child, even if the law in that state allows them to do so. Enforcement of waivers also poses potential problems. While the right of a mother to privacy when choosing a sperm donor is not absolute, she must generally be allowed to choose among anonymous donors according to her own values, including members of certain identifiable ethnic or religious groups. Because of the complexity of sperm donor contracts and the potential for litigation, legal counsel is recommended from an attorney who is qualified to draft the agreement. Full disclosure is necessary, and assistance should be sought to ensure that any consents are valid. Finally, the contract should be tailored to comply with the laws of the state or locality in which it will be followed.
How to Obtain and Use a Sperm Donor Agreement in PDF Form
Many reputable sites online offer sample sperm donor agreements to firms in PDF file format. This allows sperm banks or independent donors to download the agreement directly to a personal computer and print out a paper copy of the document. These files typically use the common Adobe Portable Document Format (PDF) file format, which requires a computer or smart device with the right software to display the content appropriately. Mac computers and Apple’s iPhone and iPad line of smart devices come preloaded with the necessary software. However , any device that uses Microsoft Windows operating system or the Android operating system will need to download an app or program to open the file correctly. Representatives from www.smartdocuments.org suggest using both the Foxit Reader or Adobe Acrobat programs for desktop computers connected to a printer. Individuals who want to read these files on their smartphones can find several free apps capable of opening the file on the Apple or Android app stores.
Case Studies and Examples
To put into perspective the above discussion of the importance of sperm donor agreements and waivers, we look at the following real life examples: Example 1. In 2001, a medical student who had agreed to donate her eggs to a couple at Yale University for IVF, later claimed that the clinic "manipulated" her and "exploited" her for commercial gain when it did not compensate her to the minimum extent that New York law allowed. The court held that while the parties’ agreement had no written agreement or waiver for sperm donation, both parties involved were able to prove that there was sufficient consideration paid for the donation of the sperm. Therefore, the sperm donations were enforceable contracts. Cummings v. The IVF America, 2004 Example 2. A court held that Waivers in writing signed by the sperm donor after the insemination of his former girlfriend prevented him from renegotiating the terms of the parties fertility contract, including terms dealing with the support of the child born of the insemination. In contrast, since the Uniform Parentage Act, as adopted in the father’s state, provided that no amount of support should be due from a person "who has participated in assisted reproduction for the purpose of providing the other party with a child", the donor was found to have no rights to the child and was also not financially responsible for any child support. Jeremy M. v. Billy S. , 2006, CA 02-06-00374-CV Example 3. A sperm donor agreed to allow an acquaintance to use his reproductive materials after thorough investigation by her on sperm banks, but later developed "deep remorse" and sought to "recover control" of the child born of the insemination. The district court held that because he had released his parental rights in a properly notarized waiver, he was not entitled to visitation rights or any financial obligations. In re Paternity of H.S.H. , 2000, CA 2-98-02823-CV Example 4. A case involving a similar issue applied California law when a woman travelled from Michigan and signed a one page agreement with a known donor before he provided his sperm for the insemination. Thereafter, a child was born of the insemination, and the mother brought suit to establish the man’s paternity and to obtain child support. The Donor motioned the court for denial of child support based on the waiver signed at the donation. The court held that there was no question that the two parties considered themselves as unmarried when they signed the waiver. Therefore, the court denied the mother’s petition for child support. In addition, the court found that the mother had also breached the parties’ agreement by seeking the father’s paternity, hence, she was estopped from denying the provision in the agreement on support. Vulcan v. Miccio , 2004, CA 2-99-01556-CV
Common Questions on Sperm Donor Agreements
Do I really need to have a sperm donor agreement or waiver?
There is no Indiana law requiring a contraceptive waiver from a sperm donor. An informal waiver may protect the sperm donor against any claims from the recipient, if the donor has no intent of ever acting as the father. An informal waiver may not protect the donor for claims against future children that may be born to the recipient through in vitro fertilization. At the very least, you should have a written agreement that clearly defines the rights and expectations of both parties.
If a donor and a recipient are not married, does that change how they should approach a sperm donor agreement?
If the recipient and donor are married to each other, the default assumption under the law is that the recipient’s spouse is the child’s legal parent. If the recipient and donor are unmarried at the time of conception and have agreed to conceive, then the law assumes that the legal parent of the child is the birth parent . The law does not address what happens if there are multiple women who give birth the same child. In that case it’s unclear whether each woman would have rights. If the recipient and donor are unmarried, and the donor has agreed to be the child’s legal parent, then the donor can be listed on the birth certificate as the child’s father and will have legal parenting rights.
What are other things to consider when deciding if a sperm donor agreement is best for you?
Other factors to consider include an acknowledgement of whether the donor will be aware of the child; if the donor has a right to know that the recipient has become pregnant and/or delivered a child; if the donor has the right to meet the child, and if so, the conditions of that meeting and what happens if the donor later wants to stop contact with the child. These issues can be decided between donors, recipients and the consent of any spouses or significant others. Again, informing your physician is key when handling these potential issues.