The topic of Sperm Donor Agreements has recently risen in discussion between same-sex couples wanting start their families using alternative reproductive methods and how the law can impact their ability to parent. Some questions have been:

  • When is a sperm donor legal?
  • Is a sperm donor a parent?
  • Can a sperm donor get rights to my child?
  • Should I memorialize in writing an agreement between my sperm donor and I?
  • What does the law say regarding sperm donors?

A Sperm Donor Agreement is a contract between the sperm donor and the intended parents. A Sperm Donor Agreement is a protective measure used to clearly identify and establish legal parentage.  For instance, although a sperm donor would technically be the biological father of the conceived child, a sperm donor agreement would establish that the donor is not the child’s legal parent and that he intends to sever all rights and responsibilities of parenthood including visitation, access, decision-making, and child support.

A recent Texas illustrates the legal ramifications of not properly securing a donor agreement between a lesbian couple and a known sperm donor. In the case of In Re P.S., a woman asked her friend to be a sperm donor so that she could have a child. Both the woman and her friend orally agreed that he would be the donor but not the father of the child if a child was conceived. The friend willingly provided his sperm and a pregnancy resulted. The child was born in August 2014. Upon the birth of the child, both the birth mother and biological father signed an Acknowledgment of Paternity form so that the biological fathers name would appear on the child’s birth certificate. The birth mother attempted to rescind this Acknowledgment of Paternity soon after.

Later, the birth mother married a woman and sought to have her spouse adopt the child. She claimed that the man was only a sperm donor and had no parental rights to contest the second parent adoption. Based on the Acknowledgment of Paternity document, the court disagreed and found the man to be the legal father of the child and denied the request for the adoption by the birth mother’s spouse. The court further granted the father visitation rights with the child and set his child support obligations.

The court rested its decision on two statutory provisions found in the Texas Family Code. First, the court considered Section 160.702 which states that a “donor” is not a parent of a child conceived by means of assisted reproduction. Furthermore, the court examined the definition of a “donor” in section 160.102(6) which defines a “donor” as an individual who provides sperm to a licensed physician to be used for assisted reproduction.

The insemination was done informally at the home of the birth mother. The father did not provide his sperm to a licensed physician but rather directly to birth mother. Because of these two factors, the father was not considered a “donor” under state law.

If the parties had the artificial insemination done through a physician’s office, the father would have been a donor under the law and would not have been entitled to parental rights.

The lesson to learn here is that you can’t handle things informally between you and a donor if you do not want the donor to be a legal parent. To qualify as a donor under the law, the donation much happen through a licensed physician. A variety of issues can arise when the sperm donor is “known” to the prospective couple and matters are handled informally. A donor can easily assert themselves in parenting responsibilities when that role is not clearly defined by agreement and law.

You can read the full case here: http://caselaw.findlaw.com/tx-court-of-appeals/1752229.html

 

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.