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Can a Sperm Donor Later be Held Liable for the Financial Support of the Child?
Posted in General

In a current case in Kansas, a man is being sued by the state for the support of a child that was the result of a sperm donation he made in 2009 to a lesbian couple wanting to conceive. Under Kansas law, a sperm donor is not legally the “father” of a child if the artificial insemination is handled by a doctor, but the law is unclear in cases – such as this one – where no doctor was involved.

How would a similar situation be handled under Indiana law? A 2010 Indiana Court of Appeals case is instructive.  In Paternity of M.F. and C.F., a lesbian couple in a committed relationship enlisted a male friend (Donor) to impregnate Mother. Prior to M.F.’s birth, a “Donor Agreement” was prepared and executed. The Donor Agreement included provisions that Donor was releasing all parental rights to the child, and Mother was releasing Donor from any obligations as to child support. Seven years later, Mother had another child from Donor, resulting in the birth of C.F.
Later, Mother’s relationship with her partner ended, and when Mother went on public assistance, the State of Indiana filed an action to establish paternity of Donor in an effort to establish child support. DNA testing established Donor as the biological father of both M.F. and C.F.   Donor defended any obligation to support the children on the basis of the Donor Agreement that, Donor argued, released him of those obligations.
The Indiana Court of Appeals held that the enforceability of the Donor Agreement hinged, curiously, on whether insemination occurred via intercourse, or artificially. This led to a dispositive procedural question: who bears the burden of proof? The Court of Appeals concluded that a party seeking to void a contract bears the burden of doing so. Therefore, the State of Indiana by way of Mother had the burden of proving insemination occurred via intercourse. Since there was no evidence presented that insemination occurred from intercourse, the Court concluded paternity could not be established.
The Court went on to offer that only a proper and well-considered donor agreement would serve to eliminate a donor’s legal responsibilities as to a child, and that a “a few lines scribbled on the back of a scrap of paper” would probably not suffice.
Interestingly, the Court also noted that there was no separate Donor Agreement for C.F., who was born seven years later, and the Court declined to find that the original Donor Agreement for M.F. could have been intended to apply to C.F., too. Thus, the Court established paternity of Donor as to C.F., making Donor liable for child support to C.F.
Serving as a sperm donor is obviously a complex legal minefield, particularly when the donation is undertaken “informally” rather than through a physician. Anyone considering becoming a sperm donor should seek legal counsel well-ahead of agreeing to do so. 

To learn more about Michael Kohlhaas and his practice, visit his profile.

  • Partner

    Mike is a partner in Bingham Greenebaum Doll LLP’s Estate Planning Department. The Estate Planning Department seamlessly coordinates and executes a wide array of legal services that cater to the unique needs of high ...



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