And can he give up these rights if he chooses…?
Choosing to have a baby with the help of a sperm donor is a momentous decision. It may be the first step on the road to creating your single-parent family, a solution to ongoing fertility issues or the best way for you to have a child with your same-sex partner. But choosing to grow your family with a sperm donor is much more complex than you might think. Before you enter into an agreement with a fertility clinic, friend, or known donor, it’s important that you understand the legal implications for your future child. Equally, if you’re considering donating sperm for the first time, it’s vital that you understand your legal rights and any responsibilities you might have to mother or child.
We take a closer look at the rights of sperm donors in the US, below.
Is the donor unknown, directed or known?
This is a key part of the equation when it comes to legal rights. A known donor or open donation may come from a friend, family member or selected coparent. Essentially, this means you know who they are from the very start of the process, although they may or may not plan to be involved in the child’s life. A directed donor is someone who can be identified once the child in question turns 18. Most sperm donors do not have legal rights over a child born from a donation carried out in a recognized fertility clinic or via artificial insemination. And anonymous donors have the right to never be identified by their genetic offspring or their family. Anonymous and directed donors do not have any parental rights or obligations. Where a donor is known, the situation becomes less clear and all parties should seek independent legal advice.
What does the law say?
The law on sperm donation is complex and varies from state to state. It’s therefore important for both donors and prospective parents to be aware of the applicable laws in the state where the procedure will take place. The 2002 Uniform Parentage Act says that the full parental rights will be awarded to the intended parents in any situation where a child is born through a medically assisted conception procedure using third party sperm or eggs. It also allows two parents of the same gender to be recognized. This act is not enforceable across the US and, to date, has been recognised by 11 of the 50 states.
What are the parental rights for a known sperm donor?
Most known sperm donors have no parental rights where the insemination is carried out artificially and the donor is not the husband of the mother, although there are exceptions. For example, in Pennsylvania parental rights are determined by genetics – this means if a donor can be proven to be the biological father of a child, he would be considered the legal father. The situation is also complicated when a known donor provides sperm to a single mother. If there is no partner to take over the surrendered parental rights, the donor cannot surrender these rights and may be able to sue for custody and visitation. In most cases, the courts will enforce or remove parental rights based on what is best for the child involved, but the law in this area is complex and constantly evolving. This complexity is one of the reasons it is recommended to seek legal advice and draw up a contract before entering into an agreement with a known donor.
Will a sperm donor have extra rights if the insemination is carried out at home?
The law offers greater protection if the insemination is carried out in an accredited fertility clinic by a doctor. In these cases, it is unusual for a known donor to be afforded any parental rights where it has been made clear that he relinquishes these rights before the procedure. When the procedure is carried out in a private home it is more difficult to document and a donor may be able to claim parental rights after the fact. In cases of natural insemination, parental rights are automatically assumed by the donor and they can reasonably expect to be named on the birth certificate.
What if a donor wants to be an active parent?
Of course, some men choose to donate sperm with the clear intention of becoming a coparent. In these cases, all parties should seek independent legal advice and agree on clear parental and financial obligations before the procedure is carried out. This agreement should include details of expected custody arrangements, speak to a family law attorney for specialist advice and guidance on the legal landscape surrounding coparents and sperm donation in your state. Written contracts may not always be enforceable in court, but they help to create a clear indication of the intention of the parties entering the agreement.
What about medical information?
Anonymous and directed donors are expected to provide any medical information that can reasonably impact the life of a child or children that are born using their sperm, including any genetic conditions. This information will be provided to prospective parents before the procedure.
Am I entitled to financial compensation as a sperm donor?
In most cases, anonymous and directed donors will receive compensation for the sperm they donate. However, the ASRM (American Society for Reproductive Medicine) suggests that this compensation should never be so great that it becomes the main reason for donation. Sperm donors usually receive between $50 and $200 per donation in a clinic. There is no cap or recommendation for private agreements, but payment is unlikely to cover more than reasonable costs and expenses.
This is all so complicated. Should I consider becoming a donor?
Although the legal landscape is complex, becoming a donor is one of the most rewarding things a man can do. As either an anonymous or known donor, men who are willing to donate sperm help thousands of people around the world create their families – this is an incredible gift. All donors should seek specialist advice from the clinic they are choosing to donate through or a family lawyer prior to donation, but they should not let this knotty legal landscape deter them from donating as a known, directed or anonymous donor.