FACT OR FACTION: Parental Rights and Obligations of Sperm Donors in New Jersey

  • Fact or Fiction: Whoever’s name is on the birth certificate, is the legal parent of that child, regardless if that person is genetically related to the child or not.

FICTION. While parentage laws vary from state to state, in New Jersey, biology is the strongest determinate of legal parentage. The parental rights of the biological father are presumptively established by the father’s genetic relationship to the child under the Parentage Act. If a DNA test would show that the donor is the genetic father, then even if his name is not on the birth certificate, he could be considered the legal father.

Notably, birth certificate records can be modified if incorrect or not accurate. For example, if a DNA test shows that the spouse of the birth mother does not have a genetic relationship to the child, the birth certificate could be amended or corrected to remove the party who does not have a genetic connection if that spouse’s parentage is challenged.

  • Fact or Fiction: If a married couple uses a known or unknown sperm donor to conceive a child, the sperm donor will have no parental and custodial rights and support obligations to the child.

FICTION. While the New Jersey Legislature has recognized that biology is not always controlling in the area of parentage and has created statutory exceptions to the presumption that the biological father has parental rights in the area of artificial or “alternative” insemination, couples must strictly adhere to the terms of the statute in order to qualify for the exceptions.

The Artificial Insemination Statute states that the husband of the wife who has used a sperm donor to conceive a child will have parental rights to the child as long as he consents to the use of donor sperm. Moreover, the statute provides that the artificial insemination has to be under the supervision of a licensed physician. Without the written consent of the husband or if done outside the supervision of a licensed physician, a married couple risks that the sperm donor could be granted parental and custodial rights and obligations to the resulting child.

Specifically, the statute states: “If, under the supervision of a licensed physician and with the consent of her husband, a wife is inseminated artificially with semen donated by a man not her husband, the husband is treated in law as if he were the natural father of a child thereby conceived. The husband’s consent shall be in writing and signed by him and his wife. The physician shall certify their signatures and the date of the insemination, upon forms provided by the Department of Health, and file the husband’s consent with the State Department of Health, where it shall be kept confidential and in a sealed file. However, the physician’s failure to do so shall not affect the father and child relationship. All papers and records pertaining to the insemination, whether part of the permanent record of a court or of a file held by the supervising physician or elsewhere, are subject to inspection only upon an order of the court for compelling reasons clearly and convincingly shown.”

While in general, the husband is legally assumed to be the father of any child born to his wife, remember, that presumption can be overcome and birth certificates can be changed if there is strong evidence that someone else was the dad—and there’s obviously such evidence in many cases involving outside sperm donors.

  • Fact or Fiction: If an unmarried woman conceives a child using a known sperm donor, that sperm donor will not have custodial or parental rights or obligations to that biological child if the woman and the sperm donor agree in writing.

FICTION. Under New Jersey law, even if the sperm donor renounces his rights with a ritual blood oath and a document sealed with wax, the agreement won’t be enforced unless the sperm donation takes place under the direct supervision of a physician. Of course, going the clinical route is more expensive than the more informal methods used by some couples, who might be ignorant of the law, or of limited financial means, or both.

The Artificial Insemination Statute addresses this scenario as well. It provides that: Unless the donor of semen and the woman have entered into a written contract to the contrary, the donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor’s wife is treated in law as if he were not the father of a child thereby conceived and shall have no rights or duties stemming from the conception of a child.

The leading case in this state that deals with the Artificial Insemination Statute is E.E. v. O.M.G.R. In that case, a single woman wanted to have a child but did not want the expense of purchasing sperm from a sperm bank. Rather, she secured her friend to donate his sperm and after the donation was given to the mother, she inseminated herself. After the birth of the child, the mother sought to terminate the rights of the father. The court denied the mother’s motion to terminate the father’s parental rights and reasoned that since the parties failed to comply with a provision of the statute by failing to use a licensed physician, they could not avail themselves of the protection of the statute.

  • Fact or Fiction. You can donate sperm to someone you know while you are married so long as everyone agrees.

FICTION. Even if everyone agrees, you cannot donate sperm while you are married. The NJ Artificial Insemination Statute is strict in its application. Any artificial insemination has be done under the supervision of a physician. Under most circumstances, you cannot donate sperm if you are married. If either party, the donor or the recipient deceives that physician of his or her marital status, that exposes the donor and the recipient to be held out as the resulting child’s parent, with the parentage and custody rights and obligations to that child. Lying on the forms is not recommended.

In Rendon v. Ale, a NJ trial Court determined that a biological father, who while married to another woman, donated sperm in order for another woman to be artificially inseminated was not insulated under the protections of the Artificial Insemination Statute. There, the parties, who were initially both married to other people, started a romantic relationship. After many years of their on-again, off-again affair, and notwithstanding that Defendant was still married, Defendant agreed to donate his sperm to Plaintiff for the purposes of artificial insemination. Five days after his first sperm sample was taken, Plaintiff executed and had notarized a “Resignation Letter of Obligations” renouncing his paternal rights and obligations. Unlike in the case of E.E. v. O.M.G.R., Plaintiff and Defendant utilized the assistance of a physician with the artificial insemination. However, the parties lied on the forms they had to complete by stating that neither of them was legally married to another person.

IVF was successful, resulting with the Plaintiff becoming pregnant with twins. After the twins were born, Plaintiff filed a petition for child support, full custody and for paternity to be established on the record. In response, Defendant filed a motion to dismiss and Plaintiff amended her petition to include that Defendant’s name be added to the twins’ birth certificates.

The trial judge denied Defendant’s motion to dismiss. After paternity was established, the court ordered discovery (exchange of documents/records and depositions) and scheduled the matter for trial. At the conclusion of trial, the Court held that Defendant could not rely on the Artificial Insemination Statute because of his deception on the forms he completed for the licensed physician prior to the insemination. The court added Defendant’s name to the twins’ birth certificate. While the court cannot force the biological father to exercise his parental rights with respect to the resulting twins; the court compelled him to pay child support.

While the parties in this case actually utilized the services of a physician, they deceived the licensed physician in order to have the procedure performed.

  • Fact or Fiction: if you use an unknown or anonymous sperm donor, that sperm donor will not have any parental or custodial rights to the child.

Potentially FACT. Generally speaking, when you donate sperm to a sperm bank, you sign consent paperwork relinquishing your rights to any children resulting from the donation. However, this assumes that the recipient of the sperm obtains the sperm under the supervision of a physician, the donor was not married at the time of the donation, and neither party lied on any of their forms. Notably, you cannot turn someone you know into an unknown or anonymous donor if you find out their donor number and buy that sperm. That donor will still be considered a known donor even if the original donation to the sperm bank was anonymous.

  • Fact or Fiction: it is a good idea to use a donor I know very well, such as an ex.

FICTION. Blurring this line as to parenthood can cause confusion and lead to rifts between family and friends. Clearly identifying everyone’s role prior to conception and outlining the legal process (such as adoption) to secure those roles after the birth is a critical step in the contract process.

Even if a sperm donor and the recipient did everything right before the birth — including signing a contract – a sperm donor can still be found to be a legal parent to a child if he later cares for the child by taking the child into his home and holding himself out as the natural father. This concept is referred to as equitable estoppel. The doctrine of equitable estoppel can be used in parentage actions to prevent a party from denying child support, where he has voluntarily acted as a parent to the child. Ongoing contact with the donor after the birth is even more reason to have a sperm donor contract in place.

The situation can become even more complex if you already have one child with your ex. It may naturally lead to greater legal risk on both sides. For example, when that ex spends time with the first child, he may naturally end up spending time with any child resulting from his donation. Both parties may quickly find the ex in a position to be legally determined a “presumed” parent, where he could attempt to assert parental rights, or where the recipient mother could attempt to assert parental and financial responsibility on the ex.

  • Fact or Fiction: I can save money by not using a physician or consulting with an attorney prior to artificial insemination.

While in the short term that may seem like a FACT in reality it is a FICTION. When you are looking to pursue an especially risky family path, we recommend that you seek counseling or talk to a mental health professional to make sure that you are clear with their intentions before proceeding. Any individual specifically thinking about using a sperm donor, especially a known sperm donor, should think long and hard about the inherent risk of unintended parental rights and responsibilities that would accompany such an arrangement. These unintended parental rights and responsibilities will likely cost you more money in legal fees to challenge than the initial consultation and involvement of a knowledgeable and reputable attorney and corresponding physician. Moreover, anytime you are essentially “contracting” with another party, especially concerning the welfare of a child, you should be seek counsel to discuss the current state of the law to ensure your “contract” is in compliance.

The attorneys at Ziegler, Zemsky & Resnick take pride in empowering and protecting families that might not fit a traditional mold to the greatest extent possible under the law.

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