FAQs

© January 2023 Deborah H. Wald

Q:  I want to have a child by using donated eggs or sperm, but am not sure whether I want to use someone I know as my donor or not.  What are my options?

A: There are three types of donors to choose from: known donors, identity release donors, and anonymous donors.  Known donors are people who are known to you at the time of conception – often friends or loved-ones.  Identity release donors are people who donate their eggs or sperm through gamete banks or fertility clinics, and whose eggs or sperm you obtain anonymously, but who have agreed that their identities can be released to any children conceived from their gametes once those children turn 18 years old.  Anonymous donors are people who donate to sperm banks, egg banks, or fertility clinics with no agreement that their identities ever can be released to any children conceived from their gametes.  Each has its advantages and disadvantages; the choice of which type of donor to use is a very personal one, with no “right” answer.  If you aren’t sure what’s best for you, I suggest you consult with a therapist or attorney who is experienced with assisted reproduction and can help you make the best possible choice for you and the family you are creating.

Q:  If I use a known donor, is it important to have a written agreement in place before I start trying to conceive?

A: Having a written agreement in place prior to conception is an important way to make sure that your donor will be viewed by the courts as a donor and not a parent, and also can be key to making sure any financial agreements you have reached – such as what you will be paying for related to the donation (e.g. medical testing, travel, lost wages), and what your liability will be if anything goes wrong – are clearly understood and agreed upon.  In addition, written sperm/egg donation agreements also serve several other important functions:

(1) The process of reaching a full agreement, putting it in writing, and signing it assures that donor and recipient are on the same page about their intentions regarding the assisted reproduction process and the parenting of any resulting children.  Most people honor their written agreements, whether or not a court would require them to.  So donor agreements have great preventative value.

(2) Your donor will be one of your child’s genetic parents, and it is important that you and your donor are on the same page about what that means.  Will your child know your donor?  Will there be regular contact between the two of them?  Will your child know your donor’s extended family?  If your donor has children, will the children know each other?  While your thoughts and opinions on these issues may change over time, as your child grows and develops, it is important for you and your donor to share a basic philosophy around these are related issues, and for that philosophy to be memorialized to avoid future conflict about what the plan was.

(3) If a situation should arise in the future where a court has to choose between multiple people who could potentially be found to be a child’s second parent (e.g. the mother’s intimate partner or the donor), a contract that makes clear that the donor and recipient had agreed in advance that the donor would have no parental rights to or responsibilities for the child can be very convincing to a court.  Similarly, a contract that clearly states an intention that the donor would have a parenting role in the child’s life would be very persuasive to a court.  Having a strong and unambiguous written document in place, to avoid disagreements about roles turning into a “he said, she said” situation at some later date, can save everyone a great deal of time, money and heartbreak.

Q:  If I need access to medical information about my unknown donor in the future, because of a medical issue with my child, how do I go about getting that?

A: At this point, most donor matching programs and donor banks have a method for obtaining additional medical information from your donor if you need it to provide appropriate care to your donor conceived child.  You should contact the egg bank, sperm bank, matching program, or fertility clinic that arranged the match as ask for help in reaching out to your donor.

SPERM DONATION

Q:  I’ve heard that the legal difference between a sperm donor and a father is whether the child is conceived through artificial insemination or sex.  Is this true?

A: The law about what makes a man a sperm donor varies from state to state.  Some states have donor insemination statutes, and others do not.  A few states have donor statutes that differentiate between donors and fathers solely based on whether conception was sexual or not, but this is the exception and not the rule.  It is far more common for states to distinguish between donors and fathers based on the way the sperm was donated.  In California, a man is a sperm donor and not a father if the child is conceived through assisted reproduction (not sex) and either (a) the man provides his sperm to a physician or sperm bank rather than directly to his recipient(s), or (b) the donor and the recipient(s) have a written agreement in place, prior to conception of a child, clearly stating the intention of all parties that the man will be a sperm donor and not a father.  But this law is specific to California. There is no shortcut to learning the law of your state, as well as the law of your donor’s state if you don’t live in the same place, so you can figure out what rules will apply to your specific situation.

Q:  If I have a written contract with my sperm donor, will that keep him from having legal rights to my child?

A: California law changed at the beginning of 2016 to provide that a man who donates his sperm for use in assisted reproduction (i.e. not through sex) pursuant to a written sperm donation agreement signed by all parties prior to conception will be treated in law as if he were not the natural father of the child (Family Code section 7613(b)(2)(A)). So in California, if you have a written agreement with your sperm donor that clearly states your mutual intentions that he be a donor and not a father, and the agreement is signed before you actually start trying to become pregnant. this will prevent your donor from being found to be your child’s legal father.

Q:  If I have a contract with my donor, which we both sign before my baby is conceived, will he still legally be a sperm donor even if we conceive through sexual intercourse rather than through artificial insemination?

A: No.  I know of no state where a man will be considered a sperm donor if conception occurs through intercourse, regardless of any written agreements.  In California, our sperm donation statute only applies to children conceived through “assisted reproduction” – which is defined in our Family Code as “conception by any means other than sexual intercourse.”  A child conceived through sexual intercourse is the child of its genetic mother and its genetic father, unless the mother is married in which case her spouse also will have presumptive parental rights to the child.

Q:  I am a single woman, and I have a friend who is willing to give me his sperm.  Our plan is for me to have primary custody of the child, but for him to have regular visitation.  He also will contribute to the child’s education, although I will pay all day-to-day expenses.  What can we do to make this arrangement legal?

A: At the outset, the two of you need to decide whether he will be a legal father or a legal sperm donor.  Legal fathers have a court-enforceable right to shared custody and visitation with their children, and they also have a court-enforceable obligation to contribute to their children’s financial support.  Donors have neither the rights nor the responsibilities of fathers.  If you want to be able to enforce your donor’s promise to contribute to your child’s education, he will need to be a father; but if he is a father, he will have right to go to court to seek more time with the child than you may be intending.  You need to seek the advice of legal counsel to help you figure out what is best.

Q:  I had a child using a known sperm donor.  He donated his sperm through a physician, so I understood he would have no legal rights.  After my child was born, I let my donor visit my child every weekend, and my child started spending overnights at my donor’s house when my child was a year old.  I always have referred to my donor as my baby’s “dad,” even though we both knew he was really a sperm donor, because I wanted my child to fit in with other kids.  Now my child is three, and I am feeling like my donor has gotten overly attached to my child.  I am trying to cut back on his time with my child, and he is threatening to take me to court.  What can I do?

A: Under California law, a person who receives a child into his or her home and holds that child out publicly as his or her own child is presumed to be the child’s legal parent.  This is true regardless of whether the person is one of the child’s biological parents or not.  Because of our artificial insemination statute, a man who is a sperm donor under California law cannot use biology to prove legal parentage (i.e. a DNA test will be irrelevant to any assertion that he is a legal parent).  But if he has received the child into his home and openly held the child out as his own child – for example, by being included as a parent in the child’s birthday parties, being listed as a parent on pediatric and school records. being called “daddy” or “papa” – he will have the same opportunity to establish himself as a legal parent as would any other person behaving the same way.

EGG DONATION

Q:  What are the advantages/disadvantages to getting eggs from an egg bank rather than contracting with an egg donor through a donor matching program?

A: Your egg donor will be the genetic mother of your child.  What that means to you – and what it will mean to your child – is very personal and may be hard to predict in advance.  When you obtain eggs from an egg bank, you typically do not have any contact whatsoever with your egg donor; nor is there typically a way to make contact in the future should you wish to do so.  When you are matched with a specific donor through a clinic or matching program, you often will have the opportunity to meet that donor – even if the meeting is conducted in a way that protects everyone’s anonymity – and to reach agreements with the donor about potential future contact.  This may be of great benefit to you or your child over time.

Q:  If I choose to use an anonymous egg donor, how do I know that she will remain anonymous forever?

A: Given the increased availability of DNA testing, and its popularity (think of 23andMe and Ancestry.com). there is no way to assure that an “anonymous” donor will remain anonymous.  In the assisted reproduction world, there are a myriad of stories of donor conceived people finding their “anonymous” donors through DNA testing.  In my opinion, in 2023, it is unrealistic to expect any donor to remain permanently anonymous.  For this reason, I strongly favor egg donation options that allow you to enter into a written agreement with your donor, because this allows you to negotiate terms for future contact, including placing limitations on that contract if that is your preference.

Q:  What financial benefits typically are provided for egg donors?

A: Egg donation is a far more complicated, and more risky, proposition than sperm donation, so the financial terms for egg donation also tend to be more complicated.  Generally speaking, women donating eggs through a clinic or matching programs are provided with a base fee, and the recipient also may be expected to pay the donor’s travel expenses to and from the recipient’s chosen fertility clinic, as well as all medical expenses associated with the donation.  In addition, recipients should purchase an egg donor accident insurance policy for their donor unless the matching program or fertility clinic already has one in place, because this will protect both the donor and the recipients from potentially massive medical expenses should something go wrong during the donation process (e.g. a negative reaction to the fertility drugs or a complication with the egg extraction procedure).

DISCLAIMER: This article is intended to provide general information about selected legal topics. The information provided is not legal advice, and is published for informational purposes only. It is not intended to be used as a substitute for specific legal advice or opinions, and the transmission of this information is not intended to create an attorney-client relationship between the sender and the receiver. No reader should act on information contained in this article without obtaining the specific advice of legal counsel. The attorneys at The Wald Law Group, P.C. are licensed to practice law in the State of California, and do not offer advice as to the laws of any other state.