Laws surrounding sperm donors and parenthood can be complicated, and they vary from state to state. In California, the sperm donor’s legal parent status depends on the circumstances of the sperm donation.
If a married woman conceives through assisted reproduction under the supervision of a licensed physician (with the consent of her spouse), then her spouse is treated as the legal father of the child.
“The donor of semen provided to a licensed physician and surgeon or to a licensed sperm bank for use in assisted reproduction of a woman other than the donor’s spouse is treated in law as if he were not the natural parent of a child thereby conceived, unless otherwise agreed to in a writing signed by the donor and the woman prior to the conception of the child,” states California Family Code 7613.
In other words, as long as the “assisted reproduction” was facilitated by a medical professional, the sperm donor will have no legal claim to the child—unless the mother wants to make an agreement in writing that says otherwise.
However, if the sperm donation was done privately (i.e. without the help of a doctor), then the sperm donor could be legally on the hook. This situation came up in a court case in Kansas, in which a sperm donor was asked to start paying child support nearly five years after the birth of the child he helped conceive. Since the artificial insemination took place in the woman’s home and not a doctor’s office, the judge ruled that the donor must pay child support, even though he signed documents waiving his parental rights. (It is important to note that these waivers do not necessarily hold up in court; if you are donating sperm without the help of a physician, don’t rely on a waiver of parental rights to solve your legal issues.)
The California Senate recently toyed with legislation that could change the status of certain sperm donors. SB 115, which was introduced in 2013, would give a sperm donor the right to seek legal parent status if he maintained a relationship with the child.
“This bill allows any interested party, regardless of treatment under the law as a sperm donor to a licensed physician or sperm bank, to bring an action at any time for the purpose of determining the existence or nonexistence of the father and child relationship presumed because the presumed father received the child into his home and openly held the child out as his own,” the text of the bill reads.
The bill would only apply to the subset of sperm donors who also act as the child’s father, rather than the more traditional sperm donor who donates the genetic material with no expectation of actually serving as a parent. According to the text of the bill, it was designed to bring paternity laws into the present, where people are increasingly “making use of assisted reproduction to conceive children with the intent to raise those children jointly.”
If this bill (or a similar bill) were to pass California legislature, it could change the legal landscape for sperm donors. Critics say the law is dangerous because it allows sperm donors to pursue paternity actions at any time, regardless of the custodial parents’ wishes, and it would damage same-sex couples’ and infertile couples’ freedom to raise the child without the involvement of the sperm donor. Advocates of SB 115 argue that the law would only apply to sperm donors who have an active role in the child’s life, keeping the anonymous donor system intact, and it would give sperm donors who act as fathers the chance to have legal parent status.
Regardless of the arguments for and against SB 115, there is no doubt that passing a law of this nature would open up the door for child support from sperm donors. Once the father has achieved legal parent status, he would be on the hook for child support like any other California father.
