New York Child Custody Issues Involving Sperm Donors (Part I)

Child custody issues are often the most hotly contested area in divorce and family law cases. It would stand to reason, then, that New York child custody issues are not limited to situations in which the biological parents of the child are in a relationship – or even know each other.

SurrogacyWith the advent of recent medical developments over the past few decades, couples who thought they may never be able to have children are able to give birth to a child through various means. Of course, this includes same-sex couples relying on donated sperm. However, with these recent developments, child custody issues have arisen, requiring New York courts to come up with ad hoc methods of resolving these child custody conflicts.

As a general matter, if someone goes through a doctor for the artificial insemination process, there is little to worry about in terms of the sperm donor later seeking custody of a child. Similarly, a sperm donor probably has little to worry about the parents seeking to enforce a paternity action. This is because the contract between the sperm donor and the business or organization accepting and storing the sperm provides for the termination of any parental rights the donor may otherwise have. Thus, to try to ensure that there will not be any problems in the future, parents who hope to conceive through artificial insemination are advised to use an official medical provider to do so.  However, it is possible that if somehow the anonymous donor was identified that the court might allow a paternity action to be maintained against him.  How that case would play out is not clear at this time under New York law.

Of course, some couples prefer to use a known sperm donor rather than an anonymous source. These situations can be much more complex because, as a general rule, New York courts will not enforce a contract between a sperm donor and the recipients of the donor’s sperm as it pertains to parental rights. (Similarly, under the New York Code, surrogate parenting contracts are specifically held to be against public policy and are unenforceable.)

What Can Parents Do to Protect Themselves?

As noted above, in a situation in which a woman or a couple uses a sperm bank or goes through a licensed medical professional, the parental rights of the donor are not likely to come up because they will have already been terminated in the contract between the donor and the receiving organization. However, when a known donor is used, a Sperm Donor Agreement should be used to clarify each party’s intentions.

Importantly, these contracts are not per se enforceable in New York courts, at least when it comes to establishing parental rights. However, there is still some benefit to creating such an agreement because it may help establish the parties’ intent at the inception of the agreement, and it can also contractually resolve other tangential issues related to sperm donorship. Absent an enforceable contract, New York courts apply the “best interest” standard when determining child custody issues.

Are You in Need of a New York Family Law Attorney?

If you are currently contemplating pregnancy by artificial insemination, or have already begun the process, you should contact an experienced New York family law attorney to discuss what you can do to protect yourself and your future child. At the Law and Mediation Office of Darren M. Shapiro, we represent parents in all types of New York child custody disputes as well as offer legal services to those seeking to take proactive actions to guard against future uncertainties. To learn more, and to schedule a free consultation to discuss your situation with Attorney Shapiro, call 516-333-6555 today.

More Blog Posts:

Equitable Distribution in New York Divorce Cases, Long Island Family Law and Mediation Blog, March 7, 2018

Addressing Client Rights and Responsibilities in Family Law Cases, Long Island Family Law and Mediation Blog, February 3, 2018