Sperm Donors and Child Support
Whether a sperm donor is legally bound to pay child support depends on state law, as well as the facts specific to his situation. Many courts have looked at whether the donor was anonymous, whether the donor was involved in the child’s life, the relationship of the donor and the mother, whether the child was conceived through in vitro or through intercourse, whether a physician inseminated the mother, and at what point the contract for non-payment of child support was made.
Sperm Donor Protection: The Uniform Parentage Act
About two-thirds of states have adopted the Uniform Parentage Act (UPA), which gives protections to sperm donors in cases where a mother has sued them for child support. The 1973 version of the UPA provides that any man that gives his sperm to a physician for purposes of artificially inseminating someone other than his wife is not the legal father of the child borne out of the insemination. Since the donor is not the legal father, he is not legally bound to pay child support. However, these protections are limited, as the states that have adopted the 1973 version of the UPA have generally not been willing to extend these protections to a donor when there has not been a physician involved in the insemination process. For example, if the insemination takes place at home, even without intercourse, if a physician was not involved in the process, the donor is not protected by this law.
Some states give the additional heightened protection of the 2000 revision of the UPA, and do not require there to be a physician involved in order to find that a sperm donor is not liable for child support. For a donor to receive protection under this law, it is only required that there be a pre-conception agreement that the donor is not the legal father.
However, under both versions of the UPA, anonymous donors are not distinguished from donors who are not anonymous, and problems will often arise in situations in which the donor and the mother know each other or if the donor later becomes involved in the childs life. These conflicts are especially prevalent in cases where there is a dispute about the donor agreement and a physician was not involved in the process. Depending on the facts of the situation, a court may find that the donor is not protected by the UPA.
Sperm Donor Protection Outside of the Uniform Parentage Act
In states where the UPA has not been adopted, and in states in which the UPA has been adopted but the facts of the case fall outside of its legal coverage, courts have been left on their own to resolve child support conflicts between a mother and the sperm donor. There are several factors that courts will consider in these situations. These factors include the anonymity of the donor and if the involved parties have entered a non-payment agreement.
The factor that courts look at most often is the anonymity of the donor, or whether the donor was known or unknown. An unknown donor is typically one who donates his sperm to a sperm bank, maintains his anonymity, and has no contact with the child. A known donor is generally one who is a friend, lover, or acquaintance of the mother, and at some point wants to be involved in the child’s life. However, an unknown donor can become known if he reveals his identity and holds himself out as the child’s father by taking an interest in the child’s life. A known donor can be deemed unknown if he takes no interest in the child’s life and does not seek to assert parental rights.
Whether the donor had a relationship with the mother or not, courts have been more willing to uphold an agreement for non-payment of child support, if the agreement took place before conception, through in vitro fertilization, and the donor is not involved in the child’s life. In other words, the closer the donor is to being unknown, the more willing courts have been to uphold the agreement for non-payment of child support. On the other hand, the more the donor holds himself out as the child’s father, the more likely a court is to find that he has the financial obligations of a father.
In some cases, even where the child was conceived through in vitro fertilization, and an agreement that the father would not pay child support was made pre-conception, a court has refused to uphold the agreement because of the donor’s later actions. These actions have been as simple as sending the child cards signed "Dad", as well as being listed on the birth certificate. Attempts to create an agreement that only gives the donor limited parental rights have often backfired. In these cases, the donor has often been ordered to pay child support, even if the agreement provided protection from future payment obligation.
Even in cases in which the donor is known, but holds himself out as unknown, some courts have held the donor legally obligated to pay child support. In these situations, the donor will have shown no interest in being recognized as the father or being involved in the child’s life. However, these cases often hinge on the relationship of the donor to the mother, how the child was conceived, and when the agreement for non-payment of child support was made. Courts have been less likely to uphold an agreement for non-support when the child was conceived through intercourse, and/or the agreement was made after conception.
A few courts have found that as a policy matter, a biological father should never be able to contract out of his financial obligation to the child, as this only harms the child in the long run. However, many courts have reasoned that if contracting out of child support is never allowed, especially in cases of unknown donors, this will deter potential donors, and would therefore make it harder for women to become mothers who otherwise are unable to conceive. The bottom line, however, is that there is still a lot of uncertainty in this area of law, and any man considering sperm donation should first seek the advice of an attorney to determine his available rights and protections.