An appellate court in Texas recently found a known sperm donor to be the legal father of the child conceived and awarded him custody rights and held him liable for child support.
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. They orally agreed he would be a donor, not a father, and he provided his sperm to her that she then used to artificially inseminate herself. The child was born in August 2014. After the child was born, they both signed an Acknowledgment of Paternity form so that his name would be placed on the child’s birth certificate. The birth mother attempted to rescind this Acknowledgment of Paternity soon after.
The birth mother later married a woman and sought to have her spouse adopt the child, claiming that the man was only a sperm donor and had no parental rights to contest the adoption. 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 also granted him visitation rights with the child and set his child support obligations. You can read the full court decision here: http://caselaw.findlaw.com/tx-court-of-appeals/1752229.html
This case illustrates the importance of understanding legal issues surrounding known sperm donors before trying to conceive using a known donor. Assisted Reproduction Attorney Rebecca Levin examines the case In Re P.S. to explain what went wrong.
Q. This woman used artificial insemination and not sex to conceive this baby, so why was this man found to be the father?
A. Legal parentage is very specific to state law. In Texas, there is a specific state law that requires the insemination to take place in the office of a physician in order for a man to be considered a donor and not a father. In this case, the insemination was done at the home of the birth mother and the sperm was provided directly to her. Because the parties did not comply with state law, the man was not categorized legally as a “donor” as defined under Texas law.
Q. Didn’t they agree that he wouldn’t be the father before the baby was conceived?
A. Yes, they had an oral agreement, but they did not have a written contract in place so the agreement they had between themselves was not enforceable. This is primarily because they had not gone through a doctor to perform the insemination as Texas law required if he was to be considered a donor.
Q. Is there anything else that they did wrong in this case that resulted in him being considered a father instead of a donor?
A. Yes, after the birth of the child, the donor signed an “Acknowledgment of Paternity” form so his name would appear on the child’s birth certificate. Under Texas law, when a man signs this form, he and the birth mother are agreeing he is a legal father and taking on all the rights and responsibilities that come with legal parenthood, including custody and child support. Once a man signs such a form, it cannot be rescinded against his wishes.
Q. What can people seeking to use a known sperm donor or those considering becoming a sperm donor do to avoid this result?
A. Consult with a knowledgeable and experienced assisted reproduction attorney who is licensed in the state that will govern the child’s legal parentage BEFORE you begin the process. Because the law governing sperm donors and assisted reproduction varies significantly from state to state, you should know the law of your state before you begin and structure your arrangement under the advice of your legal counsel. Sperm donors should also have their own separate legal counsel before donating.
Q. What are the sperm donor laws for Pennsylvania?
A. Read the post, Donor or Dad?, where Assisted Reproduction Attorney Rebecca Levin debunks common myths about using a known sperm donor under Pennsylvania law.