What is a Sperm Donor Contract?
A sperm donor contract is a legally binding agreement that is used in relation to a direct or indirect sperm donation. When a sperm donor agrees to give the mother his sperm to use it subsequently for the purposes of artificial insemination, even though the intention of both parties is that the donation shall be anonymous, it is nevertheless important for the parties to sign a contract regulating their rights and obligations. If parties enter into a sperm donation arrangement without agreeing on appropriate rights and duties , the sperm donor may ultimately be forced to provide support for a child he never intended to father.
The terms of such a contract can be tailored to meet the needs and circumstances of the parties but must be signed before treatment commences in order to be effective. Once parentage of a child is established under a contract, it is necessary to comply with the requirements of the state in which the child is conceived and born. For example, in the State of Florida a contract signed before the sperm is donated, which satisfies the statutory requirements, will be determinative of parental rights.
Core Elements of a Sperm Donor Contract
In order to create an enforceable sperm donor contract, several key components must be included. First, the agreement should explicitly address the issue of anonymity versus non-anonymity of the donor. If this question is answered early in the contract, then the parties are on the same page and it can help avoid future disputes.
Also a key component of a sperm donor contract is whether the sperm donor will retain legal parental rights after the contract is executed, or if he is relinquishing them and will have no further contact with the child (if any at all), after that point. Some donors may request in exchange for his services that he be allowed to meet the mother and/or the child. This issue can be sensitive and should be addressed as soon as possible in the contract or the parties could run into larger issues down the road.
Further, financial obligations of the parties (if any) should be included. For example, the agreement should specify who will pay for the sperm donation process, any medical expenses that might ensue and any legal fees that may be caused by the contract itself.
Other components of a sperm donor contract can include the expected duration of the contract, and any contact expectations – both with the child once it is born, and contact expectations between the mother and the donor.
Legal Considerations and State-Specific Guidelines
As with all contracts, the donor and recipient should both pay careful attention to what is included. Do not treat it as a throw-away element of the process or something to finish up while you are watching television. This is a legally binding document that carries some risks and consequences for each party. Future claims of parenthood could arise if the terms of the agreement are not observed or carefully spelled out. With this in mind, however, it is important to focus on the following considerations.
The law governing sperm donor contracts can vary state to state, and across the world. Be sure to check the laws where you and the donor are currently residing. In some jurisdictions, sperm donors are automatically deemed not to be a legal parent of the child born to a recipient. In other states and countries, the law may not be as clear, and future litigation is possible, especially if the donation is not handled according to the letter of the law.
Sample Template for Sperm Donor Contracts
A typical sperm donor contract template will contain a number of clauses which outline in detail the terms of the agreement, and gives the sperm donor an opportunity to outline his or her thoughts and feelings on a variety of topics. Below is a brief explanation of a few of these clauses:
- Health Questions: all kinds of questions relating to medical conditions, family history, habits and so on will be asked.
- Alcohol: while many sperm donors may enjoy drinking socially, there may be limits set in the contract to ensure drinking does not get out of hand – after all, sperm donors typically will be donating for a number of years as their own lifestyle changes.
- Medications: any drugs, prescription or otherwise, need to be disclosed, and limits may also be set as to which drugs can be taken.
- Trade Unions/Politics: some sperm donors may belong to trade unions and those unions may not permit those involved with it to donate sperm. Likewise, some sperm donors may belong to political parties that do not permit those of their party to donate sperm.
- HIV: In recent years, several sperm banks have refused to accept any sperm which has been inseminated with HIV as the disease can be transmitted in other ways. Instead, HIV positive donors are often directed to special IVF clinics or artificial insemination units which are already familiar with the risks and the protocols required for administering such donations.
Of course, one of the most important provisions that will be included in the sample sperm donor contract template is the Child Support Clause, which states that any child produced from the use of the donor sperm could not be claimed upon by the donor and would be within the custody and care of the recipient and the recipient’s partner if there is one.
How to Write an Individualized Sperm Donor Contract
Every situation is different and there are a number of factors to consider when creating a sperm donor contract. That said, as time goes on, there are some general guidelines that donors and recipients can use when drafting one of these contracts. One of the first things you will need to determine is whether your sperm donor will be anonymous or known. Many donors wish to remain anonymous, but there are some who are happy to identify themselves and are even willing to have contact with the child later in their lives. The responses to their willingness to have contact with their child should be codified in the contract, as should the extent of contact should the donor wish to identify himself. In addition , if the sperm donor and recipient are related, such as half or full siblings, this relationship should be discussed with an attorney experienced in assisted reproduction law. The reason for this is because there is perceived risk in this type of relationship. In some cases, the sperm donor may refuse to waive any rights he would ordinarily have. Other considerations would be whether or not the contract will include provisions regarding storage of the sperm and if the sperm can be sold, etc. The best thing to do is to sit down with your attorney and talk about your specific needs so a contract can be drawn up that meets the needs of everyone.
Pitfalls to Avoid
Undoubtedly, you have heard the term "fix it when it’s broken" and too often people in the midst of drafting a contract, think that it is easier to sign first and fix things later. This is one of the biggest mistakes you can make with a sperm donor contract. If you do not draft the contract correctly from the outset, and begin using it as a binding contract, you can put yourself in a bad position. Without the protection of a waiver, you are leaving yourself open to any number of loopholes.
Another common way people get into trouble is not consulting family law attorneys with the knowledge and experience with the specific issues surrounding sperm donor contracts. There are multiple issues and factors that must be looked at when determining the validity of a sperm donor contract. Considerations such as the different state laws in play and what happens to parental rights when the contract has been signed are the vital questions that must be answered. Do not assume you do not need an attorney simply because your agreement looks and sounds simple. You can have all the language you think is correct in the document, and this is still not enough to get you what you want. You could be signing more than you bargained for if you don’t consult an attorney.
The Importance of Mediation and Legal Consultation
It is also advisable for both parties to retain separate legal representation. A mediation service may also be called upon to provide more clarity and reduce the risk of future conflict by ensuring that all things are out in the open, with a written agreement including the details on how parenting responsibilities will be shared. Mediation services cannot only help in drafting the details, they can ensure there are no missing parts in the contract for donation.
Even if you do not think that there will be issues, most mediators will advise that a lawyer be retained for both parties . This step is crucial because of the ramifications that arise from being a sperm donor in a known situation. It may seem as though money is the problem, but without knowing where the funds to pay for the insemination will come from, or how often the sperm donor will be involved in the child’s life, or how the donations will be paid and what happens if the sperm bank closes down with stored sperm still available, there is a greater amount of liability to the sperm donor than most contract law covers. That is why it is important to have a legally binding contract with all of these details spelled out.