What are the potential legal implications in sperm donation outside the legal framework?
Recently, Knack published an article with an imaginative title "searched & found online: sperm donor". Through online Facebook groups, (especially young) women connect with willing sperm donors who seek to fulfill that woman's (or their own) desire for children through donation of "a jar" or through sexual intercourse.
Agreements are then made between donor and recipient regarding donor anonymity, etc. Such agreements are then formalized in so-called "donor contracts".
This practice raises eyebrows among our Bannister personal and family law specialists.
Donor contracts drawn up outside fertility centers have no enforceable legal value. The biological father of the child could always have his parentage established through legal proceedings. Once parentage is established, this has immediate consequences on, for example, the child's name, his or her inheritance vocation, access rights, maintenance obligation, etc.
Careful legal advice is necessary in this case. Our specialists will be happy to put some things in order for you.
The current legal framework disclosure of parentage rights
- Starting point of descent law
The existence of the legal lineage can only be proven by title. This is a writing confirming the existence of the parentage. Parentage can be confirmed in the deed of birth, a deed of recognition or through a court decision.
Today, the biological bond with the child the principled basis for parentage. That is, when the biological bond between a man and a child is established, in principle he will also legally be the father. Thus, the biological father as legal father designated, even if it had no intention of doing so.
- The Medically Assisted Reproduction Act (MBV Act).
The Law on Medical Assisted Reproduction (BS July 17, 2007) intervenes in the principled premise of the law of descent. Under the MBV Act, the wishing parents fictitious The child's biological parents (art. 27 and 56 MBV law). This applies to both gamete (egg or sperm) donation and embryo donation. The parentage can consequently not be established with respect to the sperm donor.
This departure from the general premise of the law of descent is also confirmed in the Civil Code with regard to contesting the presumption of paternity (art. 318, §4 old BW)
Today, medically assisted reproduction, of which sperm donation is a part, can only take place in the so-called fertility centers. Sperm donation under the scope of the MBV Act is very strictly regulated; prospective donors are subjected to a strict medical examination, donor anonymity is the rule, and donors receive only an expense allowance. These are often reasons why sperm donation is done outside the legal framework and thus mutually agreed upon in donor contracts.
What are the consequences of sperm donation outside the legal framework?
In the case of sperm donation outside the legal framework of the MBV Act, the aforementioned derogatory provisions do not apply and one falls back on the principle premise of the law of descent. The sperm donor will be designated as the legal father.
Too often, wishful parents assume that the "donor contracts" that contain agreements related to possible anonymity have legal consequences. Donor contracts outside the legal framework of the MBV Act have no enforceable legal value. The human body is out of business and the rules of descent touch public policy. Any agreement that interferes with this is contrary to public policy and therefore cannot be enforced in court. Agreements in donor contracts about anonymity in the future, not having paternity established and so on are legally unenforceable.
Specifically, when a mother-to-be meets a sperm donor online and agrees that the latter will play no role in the child's life and will thus remain anonymous, these agreements have no legal value. The sperm donor is always free to investigate his paternity and establish his parentage with respect to the child.
Within a period of one year after the discovery that the sperm donor is effectively the child's father, he could also contest the established parentage, for example, if the child was acknowledged by the partner of the desired parent. Once the parentage was established, the sperm donor will legally also be the father of the child, with all the - usually unintended - consequences.
The MBV Act excludes the possibility of judicial establishment of paternity by the sperm donor. If the sperm donor makes an inquiry into paternity and then requests judicial establishment, the court will declare his claim unfounded.
The legal framework surrounding medically assisted reproduction and parentage law is very complex. Choices in this regard deserve exceptional attention and legal guidance.
After reading this article, do you have questions related to the legal framework of medically assisted reproduction or parentage law? The specialists in Persons and Family Law at Bannister Lawyers are always ready to advise and assist you.
