Have you been approached by a person or a couple who needed some assistance in creating a family?  Have you considered donating your sperm to allow someone to fulfill their dream of having a child?  It is important to think through some of the legal aspects to help someone else create a child. You don’t want to give someone your sperm without getting legal assurances that you will not be legally or financial responsible for the child in question.  A written “Sperm Donation Agreement” is a legal contract between you, the “Donor”, and the intended parents who will be receiving and using your sperm to attempt to fertilize an egg, concerning your respective rights and obligations to each other and over the donated sperm and any resulting child(ren). Ideally, you then want that agreement memorialized in a Court order that would be respected by other states, and even another country.

When entering into a Sperm Donation Agreement, you want to be very clear about what each of your rights and obligations will be with respect to the sperm and with respect to any resulting child or children.

The following are five considerations when contemplating donating your sperm:

1. Location, Location, Location. Where will the donation and birth occur? Jurisdiction matters because the laws vary among jurisdictions. You want to donate your sperm, and have the birth occur, in a jurisdiction that will respect your Sperm Donation Agreement with the intended parent(s). For example, if you wish not to be listed as the father, and the intended parents are two women, will the hospital in your jurisdiction put both intended parents on the birth certificate?  If an intended parent years later wishes to disregard your agreement and pursue child support from you, will the Court enforce your agreement and protect you against such a claim? Being in a jurisdiction that routinely approves such parentage orders, or has a statute authorizing Sperm Donation Agreements and parentage orders, is important. So, you need to learn what the state of the law is in the jurisdiction where you live, where the intended parents live, and/or where the birth may occur.  Your agreement can (and should) provide which jurisdictions the law will apply and to what extent the interpretation and enforcement of your Sperm Donation Agreement will go.

2. Fresh or frozen? Whose sperm is this, anyway? Donating your sperm means that your little swimmers become the property of the intended parent(s). Do you want to work through a fertility clinic? Or keep this a very private project? If you work through a fertility clinic, and agree to have your sperm frozen, or agree to have your sperm used to fertilize an egg which is then frozen, this potential child could be a possibility for years. Fresh sperm, however, has a much shorter life span, between 20 minutes to a handful of days, depending on whether or not you have a fertility clinic preserving it. So the length of time during which your sperm can be used to create a child depends very much on whether you agree to the intended parents freezing your sperm, or only using it fresh. Do you remember the story about Sofia Vergara’s former husband, years after their divorce, claiming custody or ownership of some frozen embryos created during their marriage? Such disputes occur from time to time. Which leads to the next consideration:

4. If at first you don’t succeed, try, try again? Do you want a sunset clause? Pregnancy is not always achieved on the first try. How many cycles do you want to participate in? If you are willing in 2018 to donate your sperm, will you still be willing in 2023? Do you even know where you will be in 5-7 years? Or for how long you want to have the uncertainty of a child potentially being created. There may come a time when you want to start or add to your own family. It is a good idea to think about at what point you would like to step back from this agreement so that all parties can reconsider whether to continue. In addition, how many children are you willing to create? Keep in mind that one pregnancy may produce multiple children.
5. The big question: future contact and what to tell the child: Once you have donated your sperm and a child (or children) is produced, do you want to have continuing contact with the child or the intended parent(s)? What do you want the intended parent(s) to tell the child about who his/her biological father is? What if the child expresses interest in meeting you? Do you want to defer all decisions to the intended parent(s)? Do you want future contact? This is a subject that requires thought about how private you want this process to be, and whether you would like to have any presence in the child’s life, or influence over the answers to a child’s questions. The options run the gamut from completely confidential, to being a known presence in the child’s life. An agreement is a great way to make sure that you and the intended parent(s) are on the same page about this subject.
6. Dispute resolution: can’t we all get along? While everyone may be agreeing at the beginning of this process, there can be bumps in the road. If someone believes another party is not living up to their obligations under a Sperm Donation Agreement, do you want to consider alternative dispute resolution, such as mediation, before either party sues the other in court? Your agreement can set forth some dispute resolution procedures that could avoid a costly and hostile legal battle.

With the developments in fertility treatments, and the national legalization of same-sex marriage, more people are able to fulfill their dreams of having a baby. Social norms have also shifted such that the decision to have a child is not inevitably tied to being married, or being in a relationship with another person. The desire to have a child, to deliberately and lovingly plan to have a family, or add to it, is a beautiful thing. Reaching a consensus on these five subjects can pave the way for a generous and loving act to help create a family.

If you have any questions about Sperm Donation Agreements, or other assisted reproductive technology or would like to learn more, please contact Marjorie Just, Esq., at mjust@offitkurman.com, or 240-5074-1700.

ABOUT MARJORIE JUST

mjust@offitkurman.com| 240.507.1700

Marjorie Just’s practice as a family law attorney focuses on the negotiation, settlement and litigation of complex family law matters in Maryland and the District of Columbia, including issues of property distribution, custody, child support, alimony, same-sex marriage and domestic partnerships. She prepares family-related agreements such as, pre-marital agreements, separation agreements and reproductive agreements. She is also trained as family mediator and collaborative lawyer.

ABOUT OFFIT KURMAN

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