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Dad or Donor? Common myths about using known sperm donors in Pennsylvania

You want to make a baby, and your best friend has offered to be your sperm donor. This is an exciting time, but as you begin your journey to parenthood, individuals or couples seeking to use known sperm donors should understand the potential legal pitfalls before conceiving a child. A court in Texas recently found a man, whom the birth mother claimed to be a known sperm donor, to be the legal father of a child they conceived through alternative insemination. That court also granted him custody rights and child support obligations. Know the facts and the law before you start the process to avoid an unexpected result. Here are some common myths regarding Pennsylvania law as it applies to known sperm donors.

Myth #1

If the known donor’s name is not on the birth certificate, then he is not considered the legal father.

False. The law governing legal parentage varies significantly from state to state, but in Pennsylvania, genetics is the strongest determinate of legal parentage. If a DNA test would show that the donor is the genetic father, then even if his name is not on the birth certificate, he could be considered the legal father. This can be avoided by entering into a sperm donor contract prior to the conception of the child and/or completing an adoption after the birth for the non-genetic co-parent to secure a legal court order terminating his parental rights to the child. If you are a single parent, it is especially important to have a written contract in place prior to the conception.

Myth #2

If the birth mother is married, her spouse will be the legal parent, not the sperm donor, because the spouse’s name will be listed on the birth certificate.

False. A birth certificate alone is not a legal determination of parentage. A birth certificate is an administrative record that may be changed, especially if evidence is presented in the future that shows the information on the birth certificate is incorrect. For example, if a DNA test shows that the spouse of the birth mother does not have a genetic relationship to the child, the birth certificate could be amended or corrected to remove the party who does not have a genetic connection if that spouse’s parentage is challenged. Only a court order such as an adoption decree will provide a non-genetic parent the legal security that his or her parental rights will be recognized in all 50 states and that his or her name cannot then be removed from the child’s birth certificate in the future for lack of a genetic connection.

Myth #3

If we go through a fertility clinic or doctor’s office, the donor will not be considered a legal father.

False. Many states have sperm donor statutes that state that if a woman is impregnanted by a donor sperm with the consent of her husband, then the donor is not a legal father. Pennsylvania is not one of those states. Pennsylvania does not have any statutory laws governing assisted reproductive technology. Pennsylvania’s laws regarding sperm donors come only from case law that are specific to the facts of the case being considered by the court. Pennsylvania courts have found sperm donor contracts to be legally enforceable. Therefore, even if you go through a fertility clinic, a contract between the donor and the intended parents would need to be in place before the conception.

Myth #4

Because my friend was an anonymous sperm donor through a sperm bank, buying sperm using his donor number will make him an anonymous donor.

False. If you know a donor’s name, even if you have not met the donor, then the donor is not anonymous. If he is not anonymous, he would need to be treated as a known donor for all legal purposes. This means he may need to sign a consent to a future adoption of the child by your partner and his rights may need to be legally terminated by a court order in order to exclude him as the legal father.

Myth #5

We don’t need a legal contract if the donor is a close friend or family member. My partner’s brother has agreed to donate sperm, since we are all close, we don’t need a contract, right?

False. Ongoing contact with the donor after the birth is even more reason to have a sperm donor contract in place. In Pennsylvania, sperm donor contracts are legally enforceable and can provide necessary protection for everyone in identifying who will be the child’s parents and who will have the parental rights and responsibilities that go along with that, such as custody, child support, inheritance rights, etc. Blurring this line as to parenthood can cause confusion and lead to rifts between family and friends. Clearly identifying everyone’s role prior to conception and outlining the legal process (such as adoption) to secure those roles after the birth is a critical step in the contract process.

Myth #6

I can save money if I use a family member or friend who is a lawyer to draft the sperm donor contract. My cousin is a real estate lawyer and offered to draft a contract for me, won’t that save me some money?

Not if things go wrong. Assisted Reproduction Law is a highly specialized area of law and there is no “standard” contract like there is in real estate law. If the contract is not drafted by a knowledgeable and experienced assisted reproduction attorney who is licensed in the state that will govern the child’s parentage, there is a possibility that it may not be enforceable or recognized in the future. A contested custody or child support case can cost tens of thousands of dollars and go on for years and tear apart relationships, a much higher cost than the cost for an experienced assisted reproduction lawyer to draft a contract for you. The legal contract that governs the parentage for your child is not the place to cut corners.

Where can I find a lawyer to draft a known sperm donor contract or provide advice about terminating a known donor’s legal rights to a child?

If you live in Pennsylvania or New Jersey, you can contact Jerner & Palmer, P.C. at info@jplaw.com or 215-843-6000 to set up a consultation appointment. You can also find a qualified assisted reproduction attorney through the American Academy of Assisted Reproductive Technology Attorneys: http://www.aaarta.org/aaarta_directory.