It's The Law: Sperm donor is not a parent

Q: A while back, I agreed to be a sperm donor for one of my friends. We did this informally and did not go through a doctor’s office. We agreed that I would have no involvement with the child and was solely serving as a sperm donor. Now, she is asking for child support. Will I have to pay?

A: Florida’s legislature decided it needed to address the emerging science of artificial insemination and donation or storage of eggs, sperm or pre-embryos and adopted statutes addressing those issues in 1993. The statutes have remained largely unchanged since that time.

The statutes provide that the donor of any egg, sperm or pre-embryo other than a commissioning couple or a father who has executed a pre-planned adoption agreement relinquishes all maternal or paternal rights and obligations with respect to the donation or the resulting children. A commissioning couple is the intended mother and father of a child who is conceived by means of assisted reproductive technology using the eggs or sperm of at least one of the intended parents. But, as with many legal matters, the devil is in the details.

In mid-May, Florida’s Second District Court of Appeal addressed this issue in the case of A.A.B. v. B.O.C., Jr. In that case, two women living together as partners decided to raise a child together and asked one of the women’s brother to donate his sperm. After three attempts at do-it-yourself artificial insemination, the parties were successful. After birth, the biological father sued to establish paternity and visitation. The trial court ruled in favor of the biological father finding that the do-it-yourself approach, instead of a clinical procedure, was outside of the scope of the statute. The court refused to recognize the oral agreement between the parties that the biological father was merely a sperm donor.

The woman’s partner appealed. The Appellate Court first discussed a previous decision which upheld a written agreement that a sperm donor would relinquish parental rights or obligations to a child conceived by artificial insemination. In that case, the court ruled the written agreement established the person providing sperm as merely a sperm donor with no parental rights or obligations.

The court noted the only difference between the agreement in its prior decision and the A.A.B. case was that the agreement in A.A.B. was oral instead of written. The court further explained the parties had abided by the terms of the oral agreement for over five years and was not called into question until the donor’s sister’s relationship with her partner soured and her relationship with the child jeopardized.

Use of the term “donor” in any agreement may be critical as evidenced in the 2002 case of Budnick v. Silverman. In addition, the method of insemination may be a factor. In Budnick, Tamara Budnick and Frederick Silverman signed a pre-conception agreement. The agreement stated that if Tamara became pregnant by having sex with Frederick, she would be the sole custodian and would pay for any expense. Tamara also agreed not to tell anyone that Frederick was the father, not to put his name on the birth certificate and not to initiate a paternity action against Frederick. The agreement also stated that if Tamara did not fulfill terms of the agreement, Frederick had discretion to assume full and complete and permanent custody and guardianship of the child.

The court rejected Frederick’s argument that he was merely a sperm donor, in part because the agreement between the parties did not reference Frederick as solely a donor. It noted the agreement provided for Frederick to assume parental responsibilities if Tamara failed to provide by terms of the agreement. It also explained the legislation relieving a sperm donor from parental obligation referenced “reproductive technology.” It reasoned that impregnation by the usual and customary manner had been around long enough so that it would not constitute “reproductive technology.”

In your case, terms of any agreement with your friend will determine your rights and obligations. If the agreement is oral, proving those terms may be difficult. It would have been wise to consult an experienced attorney before walking into the insemination garden, but now it appears critical.

William G. Morris is an attorney with offices at 247 North Collier Boulevard on Marco Island, Florida. His practice covers a broad range of subjects, including civil litigation, real estate, business and corporate law, estate planning and probate, domestic relations and contracts. He writes this column periodically with respect to legal matters that frequently affect non-lawyers. The information contained in this column is not intended as legal advice and, of necessity, is generalized. For questions about specific circumstances, the reader should consult a qualified attorney.

Questions for this column can be sent to: William G. Morris, e-mail: wgmorrislaw@embarqmail.com or by fax, (239) 642-0722.

Other articles of interest can be viewed at our website, www.wgmorrislaw.com.

© 2013 marconews.com. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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