At-Home Donor Insemination | Legal Issues to Consider

At-Home Donor Insemination Risks

Sperm Donation Laws

Sperm donation as a means to parenthood is becoming increasingly popular as more people, for a variety of reasons, choose to become parents through artificial means. Sperm donation is an option for single women, lesbian couples and heterosexual couples with infertility issues. Donors can be known or anonymous. Known sperm donation may be considered trendy as it leaves the door open for the resulting child to have direct contact with the donor and to receive updated medical and social information. However, known donation presents a host of legal issues. For instance, many states have enacted legislation regarding sperm donation. In New Jersey, the statute sets forth certain conditions which must be met in order for a known donor to sustain donor status. The most significant requirement is that the insemination take place under the supervision of a licensed physician. New Jersey’s statute reads as follows:

9:17-44.   Artificial insemination

7. a.  If, under the supervision of a licensed physician and with the consent of her husband, a wife is inseminated artificially with semen donated by a man not her husband, the husband is treated in law as if he were the natural father of a child thereby conceived. The husband's consent shall be in writing and signed by him and his wife. The physician shall certify their signatures and the date of the insemination, upon forms provided by the Department of Health, and file the husband's consent with the State Department of Health, where it shall be kept confidential and in a sealed file. However, the physician's failure to do so shall not affect the father and child relationship.  All papers and records pertaining to the insemination, whether part of the permanent record of a court or of a file held by the supervising physician or elsewhere, are subject to inspection only upon an order of the court for compelling reasons clearly and convincingly shown.

b.  Unless the donor of semen and the woman have entered into a written contract to the contrary, the donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor's wife is treated in law as if he were not the father of a child thereby conceived and shall have no rights or duties stemming from the conception of a child.

Sperm Donor Rights

In other words, one cannot be both a donor and a dad. A donor has neither legal rights nor financial rights nor other obligations to the health, welfare and education of any resulting child. A dad has rights, such as decision-making authority and parenting time. There are also corresponding obligations, such as support. In recent years, it has become more prevalent to try and create a mixed arrangement in which the donor has some contact with the child but lacks any rights or obligations. This is not looked upon favorably by the judicial system. A sperm donor cannot have his cake and eat it too. One cannot be a “sometime dad”. Unfortunately, this scenario is currently playing itself out in the New Jersey court system. It is an at-home donor insemination case that illustrates the quagmire of problems that can arise when a statute is not strictly followed.

The Risks Behind Home Donor Insemination

Sheena and Tiara Yates reside in New Jersey with their two children, who were conceived, via artificial inseminations, with two different known sperm donors. Both inseminations took place at home and without the presence of a physician. Between December of 2013 and April of 2014 both known donors came forward and requested parental rights. The first donor was granted parental rights, is paying child support and having visits with the child.

The Yates had no legal recognition of their relationship when their first child was born, but in 2011, a civil union ceremony was performed, and in 2014, Sheena and Tiara married.   Since their marriage took place prior to the birth of their second child, they hope it will provide protection against the second known donor’s assertion of parental rights towards their second child. The question before the court today is whether the presumption of marriage is stronger than the requirements of the artificial insemination statute. If so, will it terminate any parental rights and obligations of the Yates’ second known donor? The case is under appeal and only time will tell how the New Jersey Appellate Division will rule.

Admittedly, it is more expensive to purchase sperm from a cryopreservation bank and to retain the services of a licensed physician. It is definitely less romantic, not as natural and an invasion of one’s privacy. However, if one uses the services of a known donor, it is important to understand the risk of doing the insemination at home. The applicable state law is important and legal counsel should always be consulted. In addition to a written contract, a lawyer will advise you on the risks of the procedure and any statutory requirements. Many times clients come into my office wanting to do an at-home insemination. As a lawyer, this is not a pragmatic decision especially if the insemination is to occur in either New York or New Jersey. While the Yates may be ultimately successful, it would have been much simpler and in the end, possibly less expensive, if they had understood and adhered to New Jersey’s statutory guidelines. If the procedure had been performed in a physician’s office much of their heartache could have been avoided. Although the Yates prepared legal contracts, none were enforceable, simply because the inseminations took place at home. It is important to realize that sometimes you need to protect yourself and your family. The future consequences of your decision must be considered and weighed against the cost factors. Isn’t your child worth protecting?

Melissa Brisman

Melissa Brisman

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