Why a Sperm Donor Agreement Matters
Establishing clear legal protections and terms between both the donor and the recipient regarding presentee parentage and potential future contact with a child is crucial. An incomplete or no consent form between a donor and a recipient parental couple may be enforceable by the state in some circumstances. In that case, the state could declare that a child’s birth certificate is falsified and could even strip legal parentage from the birth mother. A sperm donor agreement is therefore essential to describe the parties’ rights and responsibilities and determine how disputes are to be resolved.
In some jurisdictions , especially where the sperm donor comes from a sperm bank, some loopholes may allow a sperm donor to not be deemed as a parent, regardless of whether a sperm donor agreement is present. That is why it is so vital that an agreement be in writing and describes the intent of all three parties involved. You want to ensure that you draft a contract that will stand up to any scrutiny and all contingencies.
The Key Elements of a Sperm Donor Contract
The following are some key components that should be included in a sperm donor contract template:
- Parental Rights – Obviously, the most critical component of a sperm donor contract is the parental rights issue. To be fully enforceable, a sperm donor must specifically waive his parental rights, and must do so in a manner that meets the legal requirements of his individual state. Sexual intercourse with the donor recipient is an indicator that the donor has not waived his parental rights, however, it is not the only indicator. A written contract is generally the best way to establish, beyond a doubt, the waiver of parental rights.
- Financial Responsibilities – The financial responsibilities of the donor should also be clearly set out in the agreement. Who will pay for any medical expenses incurred during the donation process, and who will pay for any other potential expenses that might be incurred as a result of the donation process, need to be clearly spelled out.
- Health Disclosures – Comprehensive health disclosures are particularly important in sperm donor contracts, and should include information on sexually transmitted diseases such as HIV and Hepatitis, as well as STD’s like Chlamydia, Gonorrhea, and Syphilis. A list of medications the donor is taking is also a good idea, as is a list of his allergies. However, any allergies to foods are not generally covered under sperm donor contracts, and are typically not listed. Keep in mind that the purpose of the contract is to reduce risk, not eliminate it, so do not go overboard on this section.
- Confidentiality – Confidentiality issues are another crucial component of any sperm donor contract. While most sperm banks and fertility clinics require a sperm donor to maintain confidentiality for a set period of time, and all sperm donor contracts should include the dates that confidentiality will be maintained, if desired, a sperm donor can sign off on confidentiality completely, or at least make it more limited while leaving more options open for the recipient in the future.
The Legal Considerations of a Sperm Donor Contract
As with many contracts, there are a number of legal considerations to keep in mind when drafting and signing a sperm donor agreement. A properly worded contract can minimize or eliminate some of the issues that otherwise might become a problem down the road.
Parental Rights
A key issue that should always find its way into a sperm donor contract are the parental rights of the donor, recipient, and any other parties involved in the arrangement. While a sperm bank donation is usually anonymous, a donation by an individual to a known recipient should anticipate possible claims of parental rights by either party (most often the donor). In general, a properly written contract will specify that the sperm donor waived all rights to visitation, financial support, and decision-making in regard to the child conceived through the donation.
The donors may seek to have unsupervised visits with the child. Or they may seek the right to give the child financial support. This is a tremendously important issue to address in the contract. If not, any parent of a child conceived through a sperm donation could one day be faced with a lawsuit from that donor.
Rights to Conceived Children
This issue goes hand in hand with parental rights. It’s important for all parties to understand what the rights to any conceived children are. This can be especially relevant given the fact that sperm donors in the past have sought legal recourse in order to obtain custody of children conceived with their sperm, despite having forsworn themselves from any particular obligations to either the child or the birth parent.
Not only should the contract stipulate clearly whether the donor has any rights to the child, but it should also address the issue of whether that right is transferable to someone else. For example, could the donor transfer or "sell" their rights to someone else? This is something that should be addressed in the contract as well.
Informed Consent
No matter what exactly is specified in the contract, it’s important that all parties understand exactly what they’re agreeing to. A sperm donor who later claims they did not know the potential implications of their donation might argue that they should not be bound to adhere to the terms of the contract, or at least some of the provisions therein. All parties should openly discuss the terms and implications of the agreement to prevent future misunderstandings or conflicts.
Taxes
Although this might not be a major factor in every case, it’s worth noting that states have developed different approaches to the taxation of sperm donations, and recipients or donors could conceivably become subject to taxes they did not anticipate because they did not review the contract carefully or did not understand its terms. All parties should review their tax obligations with respect to the agreement to avoid surprises.
How to Edit a Sperm Donor Contract Template
In most cases, an existing sperm donor contract template can be used to create a contract to fit your specific needs. Alternatively, our professional opinion is that it’s best to consult a family attorney. Not only do they know the law applicable in your area, but they’ll also take the time to fully understand your situation.
The sperm donor contract template will need to be customized to include several key details that you feel are important. These can include the donor’s rights, obligations, etc . , as well as:
Be sure to include what your family home life will look like if your spouse has a child with the donor. If you’re seeking a sperm donor to co-parent with, this can be especially important. If you don’t want to have contact with the donor at all, or you’re comfortable with the donor being playmates with your own children, or anything in between, outline this clearly in the contract.
Finally, once you’ve completed customizing the contract, it will be necessary to sign and date the contract.
Sperm Donor Contracts: Common Pitfalls
Most people are unaware of the myriad of issues that can arise from a poorly constructed sperm donor agreement. With a little diligence, you can avoid most of these pitfalls, and focus your energy on creating the happy and healthy family you are dreaming of.
If the agreement is just one page long and contains only a few lines, it is probably not doing everything it should. A well-drafted agreement should be six to 10 pages in length and contain detailed provisions with clearly defined terms. While it is unpleasant to think about, this document is created and signed for the worst case scenario – what could happen if the agreement failed. A good sperm donor contract addresses all of the questions that might come up, including basic provisions concerning parental status, financial support, and rights of access.
The most commonly neglected piece of a sperm donor agreement relates to parental status. Any sperm donor agreement should expressly state that the donor of his sperm will not be treated as a parent, and will have no parental rights or obligations as a result of his donation. While many states provide statutory support for the idea that the donor is not a parent, other states offer no such presumptions – meaning that the donor could be in the unenviable position of at least being named in a lawsuit. To the extent possible, the sperm donor agreement should expressly set out that the person is not being treated as a parent and that the laws of the appropriate state should apply.
Financial support is probably the most painful topic to address, but it is also very important. It is worth some discomfort to avoid a situation that obligates you to financially support someone you never dreamed of meeting. Further, you want to make sure that your sperm donor agreement expressly sets out how much support, if any, the donor will be contributing. If there are advance payments or medical expenses involved, the agreement should describe those payments and how they will be handled. Further, the agreement should set out what happens in the event of divorce or a legal separation – where will the child reside? Who will pay them for child support? These provisions can avoid expensive court battles down the road.
The last major issue many people fail to address is contact with the donor. For some people, the possibility of a close relationship with their donor seems like a good idea, or at least worth considering, when the contract is being executed. However, when that child turns seven years old and begins asking about their biological father, they may not be so eager to have their donor come to Thanksgiving dinner. This is not even considering extreme cases. To avoid an awkward situation, a sperm donor agreement should explicitly set out the amount of control, if any, that the donor will or will not have over visitation rights.
Finding a Quality Sperm Donor Contract Template
When it comes to finding a sperm donor contract template, there are many places to obtain them. The challenge is that not all are created equally. Here are some resources to get you started on the right path:
- Legal Services: There are a wealth of online legal services these days. One such service is Rocket Lawyer which provides a variety of legal forms and templates. You will be able to find a sperm donor contract template there (for a small fee) or in their online document builder. As with any document you obtain online, it’s always best to have it reviewed by an attorney to ensure it is drafted properly for your specific needs.
- Independently Written Templates: If you have been provided with a template by a friend or associate, the same applies—you need to have it reviewed by a legal professional. Some templates are rather basic and don’t include the necessary components for your specific situation . Having an attorney create your agreement from scratch may be a better option than using a weak template.
- Online Communities: There are many online communities and forums where you can connect with others who are in the process of using a sperm donor. They can point you toward sperm donor contract templates used successfully in the past. Use caution and discretion. Not all information found online is valid.
- Legal Aid: While this may seem out of place to some, I include it to highlight that if financial challenges have kept you from seeking help of any kind, there are still resources available to you. Contact your local legal aid office for free or low-cost general legal guidance.
Above all, any sperm donor contract template should be reviewed (and possibly rewritten) by an experienced reproductive lawyer. The right lawyer will understand the significance of your family’s specific circumstances and help you draft the appropriate donor agreement.