Court Decisions Differ on Whether Men Who Make Donations to Help Others Conceive Are “Fathers” in a Legal Sense


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The New York family law system was built on an assumption that children resulted from a union of one female and one male parent, but social and technological changes have rendered this view far too narrow. Assisted reproductive technology (ART) allows a parent to conceive with the help of a sperm donor. While some states have enacted laws addressing ART, the rights and obligations—or lack thereof—of a sperm donor regarding the child remain unclear in many cases. Two court decisions from 2016 show how difficult this issue can be. In one case, a court held that a man who donated sperm to a lesbian couple is not liable for child support. Another court ruled that a sperm donor has parental rights to the child.

State laws regarding establishment of parentage bear many common elements. Most states presume that a husband is the father of a child born to the wife during the marriage. An unmarried father can claim paternity of a child, or a court can order genetic testing of an alleged father. Several decisions from the U.S. Supreme Court, including 1968’s Levy v. Louisiana, invalidated state laws that treat “illegitimate” children differently than children born to married parents. These decisions probably helped pave the way for many forms of ART.

ART laws are not consistent across the states. Section 702 of the Uniform Parentage Act (UPA) of 2002 expressly states that a donor is not a legal parent of any child conceived as a result of the donation, but New York has not enacted the UPA. New York law states that a child “born to a married woman by means of artificial insemination” is legally the child of the woman and her husband, provided that a licensed medical professional performed the procedure. It says nothing about same-sex married couples or ART performed without medical assistance. Court decisions in New York have mostly found that sperm donors are not legal parents.

A court in Kansas ruled in 2014 that a man who donated sperm to a lesbian couple in 2009, in response to an online advertisement, was the child’s legal father. Although he signed a contract waiving all parental rights, the state decided to pursue him for child support after the birth mother became ill, and her partner sought public benefits. The court held that, because the actual insemination was not performed by a medical professional, state laws regarding ART and sperm donation did not apply.

In November 2016, the Kansas court ruled that the man was not liable for child support, finding that it would be in the child’s best interest for the biological mother’s now-estranged partner to fill the role of the legal parent. A Texas court reached a different conclusion last October, finding that a sperm donor had parental rights. Like the Kansas case, the biological parents had not used the services of a medical professional. Unlike that case, the donor, actively assisted the mother during the pregnancy, and remained involved in the child’s life. The court therefore found that he “does not meet the statutory definition of ‘donor.’”

A knowledgeable and experienced New York City family lawyer can help you understand your rights and obligations in a legal dispute over issues like child custody. Ingrid Gherman has represented parents and spouses in New York City family courts for more than thirty years, and can advocate for your interests both in and out of court. To schedule a confidential consultation to see how we can help you, please contact us today online or at (212) 941-0767.

More Blog Posts:

Paternity Remains a Difficult Legal Issue in New York Family Law Cases, New York Divorce Attorney Blog, October 27, 2015

Emancipation May Release a Parent from a Child Support Obligation Under New York Law, New York Divorce Attorney Blog, May 4, 2015

New York Courts Consider Questions of Jurisdiction in Paternity, Child Custody Proceedings, New York Divorce Attorney Blog, March 31, 2015


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