Most people think of sperm donation as occurring through an anonymous donation and insemination at a clinic. If that’s the case and the couple is married, there is a statutory section (DRL § 73) that applies and provides a presumption that the child born is the child of the married couple.
However, it is also very common for the sperm donor to be known and even, sometimes, for the donation to be done at home. In that context, it is important to have an agreement that sets forth the intention of all parties. Recent New York case law indicates that New York courts will enforce such an agreement, but even if the agreement is not fully enforced as written, it still serves the critical purpose of setting forth the parties’ intentions at the time of the donation. That information will be relevant to the court in determining the best interest of the child if faced with that issue in the future.
If the donation involves a known donor or home insemination, a step-parent or second-parent adoption should still be undertaken after the child is born to protect the security of the newly formed family until the law on this issue is settled by New York’s highest court or the New York legislature. Our firm has experienced cases where a sperm donor agreement and an adoption were not completed and years later the donor asserted parental rights. The courts treated these men as it would any other birth fathers, which led to extensive litigation that would have been unnecessary had the protective steps of a sperm donor agreement and adoption been taken initially.
As of February 15, 2021, the Child Parent Security Act will allow parentage proceedings to be used in lieu of adoptions. These will be available to individuals who used a sperm donor prior the effective date of the Act. Depending on whether and what type of documentation was previously signed by the Donor, his participation may be necessary as part of that proceeding.
For a single woman using a sperm donor to become pregnant, it is critical that she seek legal advice in advance and use a sperm donor agreement because no adoption is available to terminate any potential rights of the sperm donor. However, as of February 15, 2021, she will be able to pursue a parentage proceeding.
Couples or individuals who have frozen sperm left after they have finished creating their family also need to consider how that will be treated in the event of a divorce or upon their passing. The disposition of frozen eggs, embryos, and sperm should be addressed in an agreement between the parties.