Known vs. Anonymous Sperm Donors
Conceiving a child, regardless of means, should always be a joyous undertaking. Couples who decide on the option of sperm donor artificial insemination should be wary of the potential legal risks involved. Heterologous insemination, involving insemination of a woman with the semen of a donor who is not married to her, is traditionally divided into two cases: 1) the identity of the donor is anonymous, or unknown to the couple or parents desiring insemination, and 2) the identity of the donor is known to the resulting parents.
Selecting anonymous donors from sperm banks
In most situations where the couple wishing to conceive a child obtains sperm from a sperm bank, the donor will remain anonymous. In cases involving anonymous donors, the law does not enforce or attribute to the anonymous donor any legal or parental responsibilities toward the child. American courts generally agree that enforcing such obligations on anonymous sperm donors would prevent many donors from donating at all given the risk that could arise if the parents of the child later come back to sue for parental contributions for the child. By the same token, attributing such rights to the anonymous donors would put the parents of the child at risk if the donor later returns to sue for paternity rights and causes unwanted interference in raising the child.
For LGBT parents choosing donor insemination, selecting an anonymous donor from a sperm bank best protects their legal parental rights over the resulting children. However, anonymous donor insemination might constitute a serious compromise for couples that would like their children to eventually know the identity of their biological fathers. Fortunately some sperm banks are beginning to include the option for couples or the child to learn the identity of the donors. Even in these cases, the law will generally protect the rights of the couple as well as the donor.
Known and sperm donors and acquaintances
Despite its benefits, using a sperm bank donor is an expensive process that could take many months, given the relatively low success rate and the continued cost of obtaining sperm donations. In face of such costs, and the impersonality of the process, many couples choose to obtain donations from individuals that they personally know. However, compared to anonymous donations, using a known sperm donor can have a variety of unpredictable implications regarding lawful parental rights of the child.
The rights and obligations imposed on known sperm donors and the parents of the resulting child from insemination vary rather dramatically from state to state. For example, a statute in Oregon states that if the donor of sperm used in artificial insemination is not married to the mother, then he has no rights or obligations with respect to the child. The Court in Oregon enforced this law even in cases involving known sperm donors. By contrast, a Colorado law treats the husband of the artificially inseminated mother as the natural father of the child even if the donor is a third-party. However, this law does not apply to mothers who are unmarried. It follows that in Colorado, where same-sex marriage is constitutionally banned, the lesbian partner of the mother could not obtain legal status as a natural parent of the resulting child from insemination. Even worse, the law might mean that the donor is entitled to parental rights such as visitations even if the couple did not wish for such contact between the donor and the child. In some extreme cases the state law will dictate that the donor is absolutely the legal father of the resulting child. Some states have no clear laws on the issue at all.
Be a smart future-parent
Sometimes the couple and the donor choose to enter into a known donor contract that clearly outlines the legal responsibilities and rights of the parties with respect to the child. Usually the donor will sign a contract that clearly states that he is not the legal father of the resulting child. Unfortunately such donor contracts can be a wasted effort in some cases, as issues involving legal parentage of a child is resolved by the applicable state law rather than whatever contract the parties entered into. Many states have a public policy against legal parents contracting out of their responsibilities towards a child and emphasize the right of the child to have parents rather than the right of the parent to have children. Therefore, regardless of a donor contract, the state law may impute legal rights and obligations on the sperm donors. However, in some cases, if the state law allows for second parent adoption, same-sex couples can establish the legal parentage of the child through the adoption.
The validity of same-sex marriages and parentage of donors in insemination cases are still gray areas in the legal system. Fortunately, with some careful planning and foresight, future-parents can easily mitigate some of the legal risks inherent in artificial insemination. First, when selecting a potential known sperm donor, make sure to discuss early in the process the roles and responsibilities of each party in the future of the child-to-be. Record the understanding of the parties in writing. Making sure that the donor understands and commits to his position well before the process can help to avoid future arguments. Even if donor contracts are not recognized in several states, they may still prove valuable in proving the intent of the parties if the dispute ends up in court. Second, parents should arrange for a full discussion of their state’s fertility and family laws with a qualified attorney. A clarification of the state-granted legal rights of a known donor in artificial inseminations as well as the existence of second parent or co-parent adoptions in the state would greatly benefit all parents in protecting the integrity of their future childrearing
Regardless of the path to conception, planning early for potential legal hurdles in the child’s future is the hallmark of any good parent.
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