Are sperm donors legal parents? How do states treat sperm donors and egg donors differently under the law? Yale Law Professor, Douglas NeJaime explains how states vary wildly when it comes to rules on sperm donation. For example, according to Prof. NeJaime, some states only provide sperm donors with protections to avoid being treated as a parent only when the birth mother is married. Unmarried recipients of donor sperm in such states could then sue their donors (if they can identify them) for child support.
Prof. NeJaime and host, Joel, then discuss other examples where sperm donors who did not wish to be treated as parents were assessed parental responsibilities as well as cases where men who donated sperm then wished to assert their rights as the genetic father to have a role in their child's life. Finally, NeJaime shares insights on egg donations, including an example where the use of egg donation was used to attempt to disqualify a non-genetic mother from retaining custody or parental rights.
Prof. Douglas NeJaime is a professor at Yale Law School and a leader at the intersection of family law and assisted reproduction.
Jason P. v Danielle S.: Jason P was the biological father, however, CA court did not grant parentage on these grounds, rather based on his involvement in the child’s life.
In Re C.K.G: The Tennessee State Supreme Court ruled that an egg donor was not the mother, assigning maternal rights to the intended mother who carried and gave birth to the child.
Assisted Reproduction and Surrogate Rights - a titans of law interview with Prof. NeJaime
Surrogacy Law - Risks and Rights - a brief explainer on surrogacy law with Prof. NeJaime
What Is Acknowldegement of Paternity? - a brief explainer with Prof. NeJaime
Can a Child Have More Than Two Legal Parents? - an explainer with Prof. NeJaime
Interview with family law expert, Yale Law Professor Douglas NeJaime
Generally, Sperm Donors Are Not Parents
Joel Cohen (Host): Let's talk a little bit about donors. I suppose we can start with sperm donors because historically I'm correct that they came first in time?
Prof. NeJaime: Yeah so, egg donation requires the technology that use in IVF, but we've had sperm donors for a very long time and generally a sperm donor is not a parent under state law, but it's important to identify a distinction among states. In a number of states that is only true if they're donating sperm for use by a married woman, and in some states it's only true if the sperm is being handled by a licensed physician
Exceptions – When Sperm Donors Are Treated as Legal Parents
Host: Fascinating so in some states you can't use donor sperm for an unmarried woman?
Prof. NeJaime: If you do, the sperm donor could be treated as the father, so it is it is in some ways just a carrying forward of the marital presumption that I talked about that we are fine with a married man being a non-biological father, but not so fine with an unmarried man. And so, we have treated the sperm donor as a father which of course is an impediment both to lesbian couples and to single women, which explains why many people used anonymous sperm donors so that there wouldn't be the potential for custody action or support action involving the sperm donor.
Host: That's the way they're able to get around that is by anonymizing the sperm?
Prof. NeJaime: Yeah, so then you have no way of actually identifying who the donor is. To this day, in some states, when donor sperm is used by an unmarried woman, the donor could find himself to be on the hook for child support.
Host: We had a conversation in the past with another law professor about a donor who, because they maintained a relationship with the family, he was then found to be an actual parent.
Prof. NeJaime: Yeah so this is an issue where some people actually want the donor to have some involvement in the life of the child but they don't intend that to be a parent-child relationship, and so we've really made an effort to try and be very clear in the law that a donor is not a parent and genetic connection is not a basis on which to establish parentage for a donor. Now that doesn't mean that a donor can't become a parent based on one of the functional doctrines that I talked about.
Example of Jason Patric
Prof. NeJaime: There's a famous California case now involving the actor Jason Patric in which he was a sperm donor for his on “on again off again” girlfriend at the time, but they were “off” when he was a sperm donor, and after she gave birth when they were back together, he formed a parent-child relationship. The kid called him dad, and the California appellate court said he's a sperm donor; he can't establish parentage based on being a genetic father; but he can establish parentage based on holding out the child as his child. Which this was California's, that's its functional parent doctrine, and so, we're going to recognize him as a father based on non-biological criteria. And so that's really the place that law in these more progressive jurisdictions has been working towards, but that requires clarity at the front end that the donor is not a parent based on genetics.
Donors Who Claim Parental Rights
Host: So, there is there an example where a sperm donor changed their mind, I suppose? Are there other examples that are perhaps a little less remote, I mean, besides than remarrying or getting back together with the recipient of the sperm, are there cases where sperm donors have attempted to assert rights?
Prof. NeJaime: So there are cases in which you have conflicting evidence about intent. So there are cases in which the birth mother says “I always intended you to be a donor” and the genetic father says, “I only gave sperm intending to be a father.” And those cases really become one of “well where does the evidence point?” Does it point towards the person is a donor or does it point towards the person is a parent? And there's not a consistent throughline in those cases. But what law has tried to do in jurisdictions that have regulated this more, is try to be really clear about what is required to show evidence. So it would be ideal if you had a written agreement. If you have an oral agreement, what kind of evidence would be relevant to that so that there's a true meeting of the minds.
Egg Donors – Legal Rights
Host: How about with egg donors? I mean I imagine some of the same legal rules will apply, but since egg donation isn't, I can't imagine, an at-home procedure, how is egg donation different under the law?
Prof. NeJaime: Yeah, so one thing that you point out is that you can do donor insemination at home without a doctor, which is why those laws that require a doctor to be involved are so troubling. With egg donation, health care providers have to be involved. Many states have made clear that egg donors are to be treated like sperm donors and that neither are parents based on genetics. But you still see cases arise about the status of an egg donor. It tends to arise not because an egg donor is seeking to be a parent.
Egg Donation as Grounds to Attack Parental Rights
Prof. NeJaime: I don't even know of any published case in which that was the issue but instead because the couple who had a child with donor egg breaks up and suddenly dad says that mom is not a parent of the child because she's not the genetic parent of the child, even though she gave birth. There was a famous Tennessee case on that in the early 2000s in which the court said that the woman who gave birth is the mother of the child. The egg donor is not the mother of the children. And that, of course, matches our intuitions about intent, but that's usually how that kind of question of the egg donor status arises.
Host: It seems like a pretty cold-blooded parental custody strategy to say to your ex-wife you're not actually the mother, you were just the surrogate.
Prof. NeJaime: So this is more common than one would ever hope. Family law disputes and dissolution of people's intimate relationships lead them to do horrible things and make horrible arguments that the law might permit, and so there are cases from practically every jurisdiction in which it's crystal clear that you both understood yourselves to be parents and usually a biological parent then tries to take advantage of the law to say that the other person, who's the non-biological parent, or non-genetic parent, is not a parent of the child.
Host: And sometimes prevail?
Prof. NeJaime: Yes, and too often prevails.