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Donor Offspring Custody During Divorce Proceedings

By Sheryl Rentz on March 1, 2022

A man, presumably a sperm donor.

Couples have a variety of reasons for choosing a sperm donor to bring a child into this world and build their families. The most prominent reasons among couples for selecting sperm donors include instances of infertility and trying out new methods for having children. With reproductive choices like artificial insemination and in-vitro fertilization, even the method for reproduction can vary among couples.

Sperm donation is a great solution for these couples, but it may come with its own legal challenges, especially in the case of a divorce. Sorting out child custody for a family that used a sperm donor requires special care to make sure all parties are accounted for.

Preparing For Your Child’s Future

Before moving forward, when a couple is working with a known sperm donor at the time of planning their family, it is wise to consider the role of a Sperm Donor Agreement to outline and define the relationship between the sperm donor, the couple receiving the donation, and the child that results from that donation.

This agreement can address issues like the rights of parents, physical and legal custody of the child, a future relationship between all parties, and much more related to the process of a known sperm donation. Since Pennsylvania courts will reference this agreement in the event of any dispute, you will want to contact a Pennsylvania Family Law Attorney to make sure all your concerns are addressed and in accordance with the laws of the state. An agreement can be of help to you in the event of both anticipated and unforeseeable circumstances.

Protecting the Rights of Parents

Consider a real-world example out of Massachusetts when a sperm donor agreement could have saved a lot of time, stress, and trouble. A lesbian couple filed for divorce and each asked for custody of their son. Their son was conceived by artificial insemination by an anonymous sperm donor. The sperm donor’s records were sealed, and neither the couple nor the child had a way of reaching out to him. However, since only the birth mother’s name was on the child’s birth certificate, the other mother had no legal rights to file for custody.

Surprisingly, the court argued that the sperm donor still had full parental rights to the child and would have to relinquish his rights in order for the other mother to claim parental rights. The courts stated that the woman was simply acting in loco parentis (which means you raise the child as your own, but you have no legal rights to the child) and now that the couple is getting divorced, it is solely up to the birth mother to facilitate custody if she chooses to do so.

This decision left a lot of people outraged. How can a person who is a complete stranger have rights to a child? The sperm donor is being treated as an “absentee father” and not a donor. If the donor chooses to, he could enter the child’s life and assume a parental role.

After a lengthy trial, a higher court in Mississippi finally decided that it did not make sense to put the life of a child in the hands of a person who meant to be anonymous. It also pointed out that sperm donors do not have parental rights when dealing with heterosexual couples, so it should apply across the board for same-sex couples, as well. This entire process could have been avoided from the very beginning with the help of an attorney in drafting a sperm donor agreement.

When Divorce Happens After a Sperm Donation

Today, divorce is still a possible reality for couples who choose a sperm donor as an option for reproduction–it is important to consider this possibility, difficult though it may be. While a sperm donor may give up all rights in relation to the child in an agreement, if a parenting couple divorces after a sperm donation takes place, there are still relevant matters such as legal and physical custody, visitation rights, and other issues related to the best interests of the child that need to be resolved. Both parents have rights and should be informed of them in this situation.

There is also the possibility of a sperm donation happening without a sperm donation agreement in place. Without such an agreement at the time of the divorce that lays out the obligations of all parties involved, a divorcing couple will need to know what their legal options are under those circumstances. A family law attorney who knows how courts in Pennsylvania will approach these kinds of custody cases can help navigate.

Yet, still, there might even be cases when a sperm donor may come forward to claim custody, certain parental rights, and may even try to contact a child at the center of a custody dispute. This might happen after a DNA test establishes the donor as the biological father. Both parents should be advised of what to do when there is no documentation governing this situation.

A Montgomery County Lawyer Who Can Help

There may be a lot of uncertainty surrounding the custody of a child birthed as a result of sperm donation. Whether it’s a sperm donation agreement that lays out the responsibilities all parties involved with the child or prenuptial agreement that lays out what the child’s custody will look like after a divorce, a Montgomery County child custody attorney in Pennsylvania can assist you protecting your rights as a parent and the best interests of your child in addressing all relevant issues. Laws change quickly, and you need to be up to date on the current rulings.

The Law Offices of Sheryl R. Rentz, P.C., has over 20 years of family law and divorce experience. We always work diligently to create the best possible outcome for our clients and we will strive to do the same for you. Call (610) 645-0100 for a free initial consultation about your unique situation.

Editor’s Note: Original article posted May 11, 2018. Updated March 1, 2022.

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