26 Jan 2021 New York Child-Parent Security Act Protects Parental Rights in Sperm Donor Shortage

COVID-19 lockdowns and infection fears have led to drastic shortages at many U.S. sperm banks, sending many lesbians and single women to online forums in a search for sperm donors.

But even as New York’s Child-Parent Security Act, effective February 15, 2021, will make it easier to establish parentage of children conceived with donor sperm, intended parents still must take care to meet all the law’s requirements—even if they cut out the sperm bank “middleman” and deal directly with the donor. Skipping steps in the process could put full legal recognition of intended parents’ parental rights at risk or create child support liability for the sperm donor… or even allow a sperm donor to assert parental rights.

COVID-19 Hits Already Shrinking Sperm Donor Pool

The COVID-19 pandemic has created a “perfect storm” of circumstances—enforced isolation, the slower pace of work-from-home lifestyles, business closures and fear of infection—that both sparked the desires of many to start families and cut off the already dwindling supply of donor sperm.

As we reported recently, the proliferation of ancestry DNA testing websites and donor sibling registries as well as a growing movement for donor transparency had already made recruitment of sperm donors more difficult. In the early “Wild West” days of the sperm bank industry, a single donor might sire dozens, or even hundreds, of offspring, all unknown to one another.

Even today, there is no U.S. law limiting the number of pregnancies from a single donor. As sperm donation and IVF became more prevalent, established sperm banks and professional organizations such as the American Society for Reproductive Medicine (ASRM) developed best practices to “avoid an increased risk of inadvertent consanguineous conception.” Today, commercial sperm banks adhere to ASRM guidelines recommending no more than 25 live births from a single donor per 850,000 population, although a determined donor could evade the limit by going to multiple sperm banks.

Researchers estimate 30,000 to 60,000 babies are born via sperm donation in the United States each year—although no one knows for sure, because there is no mandated reporting. With the tighter limits, the number of sperm donors needed to meet steadily growing market demand—approximately 20 percent driven by heterosexual couples, 60 percent by lesbians and 20 percent by single women, according to a New York Times report—kept growing as well.

Then COVID-19 hit. As The New York Times reported:

“To meet this demand, men provided sperm at a steady rate for years, some banks said. But the coronavirus changed things. Existing donors were scared to go in. New donor sign-ups stopped for months during lockdown and never really bounced back at some banks. Several banks said that they had a lot of old frozen sperm in storage, but that it could last only so long.”

Sperm Bank Shortages Send Women to Online Donor Networks

Sperm banks were hit with severe shortages just as the new stay-at-home pandemic lifestyle convinced many would-be mothers the time to start a family had come.

Frustrated with the scant selection of available donors in sperm bank catalogs, women turned to social media, the New York Times reports, where networks such as the “11,000-member private Facebook group, Sperm Donation USA, which helps women connect with a roster of hundreds of approved donors,” sprang up.

In many ways, the sperm banks are at a competitive disadvantage with the direct-to-donor model. Although there are few laws governing U.S. sperm banks, they are subject to Food and Drug Administration regulations governing biological tissue, which require sperm to be quarantined for six months and donor blood testing. The banks typically track donors by number anonymously and adhere to ASRM guidelines for limiting the number of pregnancies per donor and obtaining a donor’s informed consent. Cost can be as high as $1,100 per vial, guaranteed to contain 10 million to 15 million motile sperm, the Times reports.

Turning to online solutions for donor sperm is a trade-off. The freewheeling online marketplace for sperm comes with none of the safeguards provided by commercial sperm banks—and usually a fraction of the cost. Almost all the donors offer their sperm for free. Most—but not all—state that they will donate only via assisted insemination; many use commercial services to genetically test, store and ship the sperm to recipients. Others arrange in-person meet-ups to hand off the donation.

Informal Sperm Donor Arrangements Risk Parental Rights

Health and safety considerations aside, intended parents and sperm donors alike should be aware of the legal perils of participating in informal sperm donor arrangements, particularly in regard to parental rights and child support obligations.

In New York, the Child-Parent Security Act (CSPA) provides a process allowing qualified intended parents to establish legal parentage of babies born through assisted reproduction from the moment of birth, even if they are not genetically related, and establishes that the sperm donor has no parental rights. But in order to take advantage of this increased protection for families created through assisted reproductive technology, or avoid potential future challenge to parental rights, intended parents and donors must follow the requirements of the law:

• Pre-birth order: Under the new law, intended parents of a child conceived using assisted reproduction may petition for a judgment of parentage during pregnancy and prior to birth, to take effect upon the birth of the child. The petition must be verified.
• Residency: The intended parents must petition in the New York county where they live or where the baby was born, or, if the parent and baby do not live in New York state, they may petition up to 90 days after birth in the county where the baby was born.
• New York born: The petition for judgment of parentage must include a statement that the intended parent has been a resident of New York state for at least 90 days; or if not a resident, that the child was born in New York state.
• Confirmation of donor conception: The petition must contain a statement from the gestating parent or surrogate that she became pregnant as the result of sperm donation (or egg or embryo donation).
• Non-gestating parent statement: The petition must contain a statement that the non-gestating parent consented to assisted reproduction, or to conception via sperm donation.
• Proof of sperm donor intent: In the case of an anonymous donor or a donation obtained from a sperm bank or storage facility, proof of donative intent can a statement from the facility that the donor does not retain any parental or proprietary interest in the donated sperm. In the case of a known donor, proof can be a statement from the donor acknowledging the donation and confirming that the donor has no parental or proprietary interest. This statement must be signed by the donor and either notarized, witnessed by two people who are not the intended parents, or witnessed by the health care professional who supervised the donation. In the event the donor cannot be reached, the law includes strict criteria for attempting donor notification.

With the above criteria met, the court will grant a judgment of parentage, declaring that “upon the birth of the child, the intended parent is the only legal parent of the child.” Upon birth, a copy of the judgment of parentage is presented either to the health department or to the hospital registrar of births, which reports the parentage of the child to the appropriate department of health, which issues the birth certificate. In the event a birth certificate has already been issued, the court will direct the health department to amend the birth certificate and seal the record of the original one.

In times of crisis, it’s normal for Americans to seek non-traditional and innovative solutions for surmounting obstacles and carrying on with life. Social media and the internet have provided vast new opportunities and resources that would have been inaccessible just a couple of decades ago.

The Child-Parent Security Act is a long-awaited reform package that will remove obstacles to surrogacy, protect the rights of intended parents to create families via assisted reproduction and help reduce the stigma and insecurity faced by non-traditional families. But in order to fully benefit from these broad new reforms, intended parents must follow the rules enacted in the law, put into place to both foster reproductive rights and to protect all parties against potential harm.

For more questions about sperm donation or about compliance with the requirements of the New York Child-Parent Security Act, contact IFLG’s experienced team of assisted reproductive technology attorneys and paralegals.