What to Expect at the Legal Stage of a Sperm Donation

Thinking about sperm donation? Whether you're considering becoming a donor or using donated sperm to start a family, it's important to understand the legal process involved. At Tsong Law Group, we specialize in helping families navigate these waters. Let's break down the legal steps of sperm donation in simple terms.

What is a Sperm Donation?

Sperm donation is when a man agrees to give his sperm to help someone else have a baby. This can help people who can't have children on their own, like single women, same-sex female couples, or heterosexual couples. 

The Legal Process: Step by Step

1. Initial Screening

Prior to the contract drafting stage, before a clinic will allow a sperm donation, the potential donor must have a health screening. These tests check for sexually transmitted diseases which may make the pregnancy unsafe or diseases and genetic conditions that could be passed to children. Donors may also answer questions about their family health history or undergo a genetic screening, and in some cases the parties will undergo psychological screening. 

In some states, an home insemination may be permissible, in which case the parties do not have to perform a screening, but in all states where sperm donation is recognized, assisted reproduction and not sexual intercourse must be used to achieve pregnancy in order for it to be a legal sperm donation. 

2. Choosing Your Attorney. 

When a directed donation occurs, between a donor and the intended parents directly rather than a donor and the sperm bank or intended parents and a sperm bank, you should have a legal contract in place prior to the sperm donation. When a sperm bank is used, the sperm bank will have a contract predrafted, although you may wish to have a lawyer review the contract. 

In a directed donation, the legal stage consists of each of the parties, the intended parents or recipients, and the sperm donor (and spouse if he has one) choosing and signing on with their own lawyer. Both parties will have separate legal representation throughout the sperm donation process. The legal fees for both parties are usually covered by the intended parents. It is crucial to select an attorney experienced in drafting sperm donation agreements and familiar with the law. You can read this blog article to see what qualities to look for when choosing your lawyer.

3.  Representation Agreement. 

Once selected, the lawyer will send the party a representation agreement or letter, which will explain what the scope of services the lawyer is providing. Both the sperm donor and the intended parents will sign the representation agreement with their respective attorneys. This is not the actual contract between the parties but your agreement to agree to representation with your lawyer.

4.  Drafting the Sperm Donation Agreement. 

The lawyer for the intended parents will typically draft the sperm donation agreement based on the information the agency or intended parents have given them. The sperm donor’s lawyer usually reviews the contract with the donor. In some cases, the contract may be pre-drafted and the parties review and revise them separately.

Your sperm donation agreement will cover details such as:

• Parental rights and responsibilities of the child;

• Financial obligations to donor;

• What future contact the parties will have including with the child;

• Sharing of medical information and updates on contact information;

• Confidentiality requirements

The agreement will also describe a level of disclosure of identities, ranging from anonymous to fully disclosed. An undisclosed or anonymous donation may have stricter FDA requirements on testing and quarantining. 

5. Reviewing the Sperm Donation Agreement. 

Schedule a review appointment with your attorney to go through the sperm donation agreement thoroughly. Read the sperm donation agreement beforehand because your lawyer will not read it aloud for you. Make sure your spouse is also present for the review if they signed the representation agreement, as they will be a party to the agreement. The review is the time to address any questions or suggest changes.

6. Negotiating and Finalizing. 

Once you approve the draft or redline your attorney sends you after your review, they will present the draft or redline to the other side's attorney and the negotiation begins. Once both parties approve the latest version, a final sperm donation agreement will then be circulated for signing.

7. Signing the Agreement. 

Most of the time, the parties do not need to notarize their sperm donation agreements. However, some parties will prefer to notarize if they want to verify the identity of the person signing and some states such as New York will require a notarized contract to be effective. The attorney may send you a PDF which can be printed and advise if you need to notarize the agreement.

8. Issuing of Legal Clearance. 

Once both parties have signed, the intended parents' attorney will issue a legal clearance letter to the clinic or bank which allows the retrieval procedures to occur or for existing vials to be transferred to the intended parents’ names.

Common Questions About Sperm Donation Laws

Can a sperm donor claim parental rights later?

Generally no, if proper legal agreements are in place. Separate representation by lawyers will ensure there is no claim later on that one party didn’t understand what they were signing.  Be sure to talk to your attorney about whether you should do a second parent adoption if you are a same sex couple. If you don't follow the legal process correctly, a donor might be able to claim rights or could be responsible for child support. 

Do children have the right to know who their donor was?

This depends on state laws and the agreement between donors and recipients. Colorado currently will provide adult donor conceived children the right to access donor information, while other states like California and Washington will allow the donor to determine if they agree to disclosure if the child approaches the clinic after turning 18. Note that studies do show that donor conceived children benefit from being told about their donor conception and having a chance to speak with the donor. You can read our article on the different options for donor contact here.

Final Thoughts

Sperm donation can be a wonderful way to build a family, but the legal steps are important to protect everyone involved. Working with an experienced fertility lawyer ensures your family is legally protected now and in the future.

At Tsong Law Group, we help guide you through every legal step of the sperm donation process, explaining complicated legal terms in simple language and making sure your family's future is secure.

Have questions about sperm donation or other family-building options? Contact us today for a consultation about your specific situation.