Informal Sperm Donation in California

Legal Framework and Considerations

In California, informal sperm donation, including at-home artificial insemination (AI), is a legally recognized method of assisted reproduction under the California Family Code. The state’s laws, particularly FAM § 7613 and FAM § 7613.5, provide a clear framework for establishing parentage and protecting donors from unintended legal responsibilities when proper conditions are met. Below are the key provisions, including direct statutory definitions and critical amendments for informal donation.

Key Provisions:

• Definition of Assisted Reproduction:
  • Per FAM § 7613(b): "A donor of semen provided to a licensed physician and surgeon or to a licensed sperm bank for use in assisted reproduction by a woman other than the donor’s spouse is treated in law as if he were not the natural parent of a child thereby conceived, unless otherwise agreed to in a writing signed by the donor and the woman prior to the conception of the child." The statute implicitly defines "assisted reproduction" as the use of donor semen to achieve pregnancy through means other than sexual intercourse, including:
    • Artificial insemination (AI), whether at home or in a clinical setting.
    • In vitro fertilization (IVF) and embryo transfer.
    • Donation of sperm, eggs, or embryos.
  • California law explicitly does not require physician involvement for AI to be legally valid. At-home AI using donor sperm qualifies as "assisted reproduction," with donor status determined by intent and documentation.
• Definition of Donor:
  • Under FAM § 7613(b)(1), a "donor" is initially defined as: "a man who provides semen to a licensed physician and surgeon or to a licensed sperm bank for use in assisted reproduction by a woman other than the donor’s spouse." However, for informal donation, FAM § 7613(b)(2) expands this definition with critical provisions:
  • "If the semen is not provided to a licensed physician and surgeon or a licensed sperm bank as specified in paragraph (1), the donor of semen for use in assisted reproduction by a woman other than the donor’s spouse is treated in law as if the donor is not the natural parent of a child thereby conceived if either of the following are met: (A) The donor and the woman signed a written agreement before conception that the donor would not be a parent. (B) A court finds by clear and convincing evidence that the child was conceived through assisted reproduction and that, prior to the conception of the child, the woman and the donor had an oral agreement that the donor would not be a parent."
  • This means that in at-home AI scenarios, a "donor" is any man providing semen directly to a non-spouse recipient, and he is legally protected from paternity if either: (1) a pre-conception written agreement explicitly states he is not a parent, or (2) a court confirms a pre-conception oral agreement to the same effect, supported by clear evidence.
• Donor Paternity and Termination:
  • FAM § 7613(b)(2) ensures that a donor in an informal setting (e.g., at-home AI) is "treated in law as if he were not the natural parent" when either condition (written or oral agreement) is met. A written agreement, signed before conception, is the strongest safeguard, stating the donor relinquishes parental rights and the recipient assumes full responsibility.
  • If no written agreement exists, a court may still terminate paternity based on an oral agreement, but this requires "clear and convincing evidence" of the parties’ intent—making documentation highly advisable.
  • However, if the donor later assumes a parental role (e.g., through consistent involvement or support), courts may establish paternity based on conduct, overriding donor status (e.g., Steven S. v. Deborah D., 2005).
• Intent and Documentation:
  • FAM § 7613.5(a) states: "An intended parent may, but is not required to, use the forms set forth in this section to demonstrate his or her intent to be a legal parent of a child conceived through assisted reproduction." These optional forms (e.g., Form ADOPT-200) provide a standardized way to document intent, but private written agreements are equally valid.
  • For at-home AI, a pre-conception contract—signed by the donor and recipient(s)—should explicitly state the donor’s non-parental status and the recipient’s sole custody. Notarization strengthens enforceability, though it’s not required.
  • Without documentation, disputes may hinge on evidence of intent, risking donor liability if intent is unclear.
• Practical Considerations:
  • At-home AI is popular in California for its accessibility and affordability, with donors and recipients often connecting via online platforms or personal networks.
  • While physician involvement isn’t required, it provides a neutral record. For informal AI, retaining signed agreements, communication logs, and insemination proof is critical for legal clarity.
  • Courts prioritize the child’s best interests in disputes, but FAM § 7613(b)(2)’s provisions typically shield donors from paternity claims when pre-conception intent is documented.
• Special Cases:
  • For unmarried recipients or same-sex couples, intent governs parentage. A non-biological parent can establish legal parentage via a signed agreement or post-birth adoption under FAM § 7611.
  • Surrogacy and egg donation fall under separate provisions (e.g., FAM § 7960), but sperm donation rules remain consistent.

California’s legal framework, through FAM § 7613(b)(2), explicitly supports at-home AI as a valid form of assisted reproduction. By defining a "donor" to include those in informal settings and providing clear pathways to terminate paternity—via written or oral agreements—the law ensures donors can avoid parental responsibilities while recipients secure their rights, reinforcing California’s progressive stance on family-building.