Avoiding Legal Pitfalls of Surrogacy and Sperm Donation

William Peacock, Esq.

You’ve heard of that poor kind-hearted man in Kansas, right? He answered an online advertisement for a lesbian couple that was seeking a sperm donor. The parties came to an agreement, signed a contract, and one of the women conceived a child.

Hard times hit and the couple applied for state benefits. Kansas sued the sperm donor for child support because the parties did not use a doctor in the insemination process, reports the Associated Press.

While reasonable minds could argue about the intelligence of such a requirement (doctors can screen for STDs and can verify that the insemination was sperm donation and not the old-fashioned method), most parents don’t care about the debate. They want a child without legal hassles. Sperm and egg donors don’t want to be forced to pay support years down the line.

With these concerns in mind, here are a couple tips to minimize the risk of legal issues:

Go Through a Doctor

This is where the Kansas folks went wrong. According to state officials, at least ten other states also require the use of a doctor. While Illinois has its own set of requirements, and has reproductive laws that many would argue are far more enlightened than most of the other states, doctors do carry their own set of benefits and protections.

It also protects the donor. While the Kansas couple are standing behind their donor and not seeking support themselves (the state is the aggressor), not all people are as honest. Imagine answering an online ad and years later, you’ve been labeled the father and the mother is seeking support. Without a doctor’s signature, it’s essentially your word against hers.

Follow the Surrogacy Law

Illinois’ surrogacy laws are so protective of the intended parents, and so “modern,” that there actually seems to be a fertility tourism industry booming in the state. Under the surrogacy law, at the moment of birth, the intended parents are the parents. The surrogate, donors, and everyone else involved lose all rights and obligation at the moment of birth. The only possible hitch comes when one does not comply with the statute’s requirements or when something goes wrong in the fertilization process (i.e. the wrong sperm and/or eggs are used).

When it comes to situations like our Kansas donor, the Illinois law is clear:

“A [sperm or egg] donor may be liable for child support only if he or she fails to enter into a legal agreement with the intended parent or parents in which the intended parent or parents agree to assume all rights and responsibilities for any resulting child, and the [sperm or egg] donor relinquishes his or her rights to any gametes, resulting embryos, or children.”

Illinois’ statute has a litany of very strict requirements, including age, signature, and genetic relationship requirements. While it may be possible to draft your own surrogacy agreement, or find one online, the risks do not outweigh the cost of a doctor and a lawyer. Just ask the Kansas folks.

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Avoiding Legal Pitfalls of Surrogacy and Sperm Donation