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