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.
New York’s Child Parent Security Act, which went into effect in February 2021, allows a parent who used a sperm donor to create their family to legally establish parental rights to their child through a parentage proceeding. Depending on what type of documentation was previously signed by the sperm donor, his participation may be necessary as part of that 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.