Last month, a surprising ruling came down from a New York appellate court, holding that a man who believed he had been a mere sperm donor was actually the legal father of a child conceived from his donations. The case is a cautionary tale for those thinking they might just do a solid for an ex or friend — without fully complying with state laws covering gamete donors.
States have to balance two competing interests when it comes to these family law issues. The first is that kids have a right to support from both parents. But the second is that in some cases — like when there’s a sperm donor who goes through all of the right legal processes — it doesn’t make sense to count the donor as a legal parent. So what happens when the donor clearly didn’t mean to become a father, but the prescribed legal processes weren’t followed?
In the Matter of Claudia B. v Darren M., the New York appellate Court recounts how the Petitioner (donor) and Respondent (Claudia B.) dated for a few months in 2009. After the relationship ended, “petitioner asked respondent to donate sperm so that she could conceive a child, and he agreed.” Drafts of a sperm donation agreement were exchanged between the parties. In December 2009, Petitioner donated 17 vials at a fertility clinic. Wow, 17 vials. No word on how big these vials were.
In any event, every good law school student knows that in contract law, there’s no agreement until the parties have settled on the terms. Here, however, no final agreement was ever reached by the parties, and nothing was ever signed. The donor alleges that the clinic told him that Claudia B. would not be able to use his sperm without a signed agreement. So that was that he thought. It was over, and he wouldn’t be a donor.
Except it wasn’t.
Approximately three years later, after no contact between the parties, Petitioner learned that his ex had, in fact, been able to use the sperm he deposited at that clinic, conceived, and gave birth to a child. Then, in 2017, the ex brought a paternity action against the donor.
The donor argued that the mother’s claims were barred by a legal doctrine called estoppel, which generally prevents people from asserting rights against another person who has in good faith relied on their promises or conduct. But the court was unmoved, finding that “We need not decide whether, under New York law, estoppel is available to foreclose a mother from asserting paternity as to a known sperm donor, because even if it were respondent’s claim would fail.”
The court noted that there was a process to avoid becoming a legal father when all you meant to be was a donor. But “[c]ontrary to respondent’s contention, there was no binding enforceable oral or written agreement between the parties, either before or after respondent donated his sperm. There is no dispute that a signed contract does not exist. Nor was any final oral agreement reached.” Since there was no contract that limited the donor’s role when he gave up his sperm, the donor was found to be a parent of the child, with all the financial and other obligations that come with it.
As an assisted reproductive technology attorney, it’s hard for me not to think it strange that the court’s own language repeatedly refers to the donor as a “donor,” and not as “the father,” given its ultimate conclusion. Indeed, that language would be more appropriate if there *were* an agreement between the parties, even if all the details weren’t hammered out. But that’s not enough, clearly. Under New York law, the parties’ intentions are not enough to establish the legal relationship between the gamete provider and the child.
I had a chance to speak to the donor’s attorney, Brian Esser, about the case. Esser, who did not represent the donor at the contract stage, explained that they were, of course, disappointed with the decision, but that he understood how the court reached its conclusion. Here, without a final and signed “preconception agreement,” the arrangement was not within the strict letter of the law. Esser is hopeful that the new Child-Parent Security Act (CPSA), which will take effect next year, will be more helpful for future donors and parents wishing to define their relationship and have it upheld in the Empire State. The CPSA moves away from the limited traditional genetic and adoption based parental recognitions, and focuses on the intent of those involved in assisted reproductive technology arrangements — parents, donors, and surrogates.
Amira Hasenbush, a California assisted reproductive technology and sperm donation legal expert, thought the case could have gone in a different direction under a California judge. California law, too, though would require that at least an oral argument be found to have existed between the parties. Hasenbush believed that based on the opinion, that there was pretty clear evidence there was an oral agreement that both parties intended for Darren M. to be a donor and not a parent prior to the donation. The fact that Claudia B. made an offer in writing to modify that oral agreement AFTER he made his donation, and the donor rejected it, should not negate the existence of the original oral agreement.
Makes sense to me. Too bad for the donor that the judge didn’t see it that way.
The lesson, clearly, is whether you are a Kardashian considering asking your ex for sperm, or one of us regular folk, the law in this area is important, and varies from state to state. Given that the stakes are high, with the life and support of a child at issue, it is worth taking the time and spending the money to talk to an attorney, complete a legal agreement, and make sure the intended arrangement clearly falls within state law.
Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.
Jordan Rothman is a partner of 
Scott Alan Burroughs, Esq. practices with 
