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With sperm donations and artificial inseminations on the rise, donors should consider estate planning issues

Every year, approximately 75,000 women are artificially inseminated. In the United States alone, there have been an estimated 500,000 children born as a result of artificial insemination. As a result, a new area of estate planning law has developed around this once rarely discussed issue.

Sperm donation is the process of retrieving, processing, freezing and storing semen for later use. Since the 1970's, men have been donating their sperm for a variety of reasons from earning money to ensuring the continuation of their bloodline after being diagnosed with cancer.

In today's world, sperm donation presents some perplexing and often overlooked issues for estate planning. For example, what happens to the sperm when the donor dies? Does the donor need to create an estate plan that excludes the child born as a result of the donation? Below are answers to these and some other frequently asked questions regarding sperm donation.

What happens if the donor dies?
When someone passes away, property is distributed to others by will or by inheritance under intestate laws. In addition, through an anatomical gift, a person can donate all or a part of their body for medical or scientific purposes after their death. Whether someone can provide for distribution of semen by one of these methods is yet to be determined in Pennsylvania. The same problem does not arise for anonymous donors. Usually anonymous donors sign a contract at the time of donation waiving all rights and responsibilities to the sperm and the after-born child.

Traditionally, property that is passed at death has consisted of such items as money, stocks, furniture and real estate. Pennsylvania has not decided whether sperm can be categorized as property so that it passes upon your death. However, the state courts that have had the opportunity to address the issue, have decided that an individual has a property right in their sperm. This property right allows a person to pass along their sperm upon their death.

These cases may shed some light on how Pennsylvania would decide the issue if the opportunity presented itself. One such case in California involved a man who had stored fifteen vials of sperm at a sperm bank. At the time of donation, he signed an agreement authorizing the release of the sperm to his girlfriend or her doctor. The agreement also authorized the release of the sperm to the executor of his estate. In his will, he bequeathed the sperm to his girlfriend. A problem arose however when his adult children challenged the release of his sperm to the girlfriend because they wanted to "help guard the family unit." The court rejected the challenge and held that because the sperm was the donor's property, it should be distributed according to his wishes. The girlfriend ended up with the sperm.

Sperm donation presents complex estate planning issues centered on parenthood and inheritance. In the case of either a traditional married couple or a non-traditional situation, any child may be provided for in a will. This is the case simply because with a will, you can leave property to whomever you want – or exclude someone altogether. Only time will tell if Pennsylvania follows California's lead.

What is an "anatomical gift?"
Another option for ensuring the use of your sperm after you are gone is by anatomical gift. Often referred to as organ donation, this is a way of donating all or a part of your body for research or transplantation. Pennsylvania law allows for gifts of tissue and fluids, which presumably encompasses sperm. The law also allows for the receiver of the anatomical gift to be an individual for use in therapy or transplantation. This seems broad enough to include the donation of sperm for transplantation into a designated female.

What happens to sperm in the case of married couples?
When the situation involves a married couple, and the donor is the husband and the recipient is the wife, the issue of whether a child inherits does not arise. In that case, the family, once created, is considered the "traditional" family unit for which the law is accustomed and tailored to fit. It is the "non-traditional" family units that raise significant issues. For instance, when the donor is known but not the husband, or when the donor is anonymous, the question becomes whether a child may inherit from that donor.

What if the donor and recipient are not married?
Pennsylvania law considers a child born out of wedlock or from a donor other than the husband to be an illegitimate child. The law specifically governs an illegitimate child's rights of inheritance. A child born out of wedlock is the child of the mother and the child is considered the child of the father in one of three ways: 1) if he marries the mother, 2) if he holds the child out as his and supports the child, and 3) if there is clear and convincing evidence of paternity, such as through a paternity test. Only if paternity is established in one of these three ways may a child inherit from its father when he is not married to the mother at the time of conception.

In the case of an unmarried woman, the courts may impose upon a known donor the responsibility of inheritance if they believe a child should have the right to inherit from both parents, regardless of their marital status. This probably would not be the outcome for an anonymous donor because these donors often waive all rights and responsibilities to the child at the time of donation. However, this remains to be seen.

Can a child inherit from the donor's family?
As for inheritance from the donor's family, presumably, the husband of the woman inseminated would be the extended family of the child. This is similar to adoption, and would fit into the law's traditional concept of family. Thus, a child born in this manner should be able to inherit from extended family such as grandparents, aunts and uncles, etc. However, when the mother is unmarried, it is unclear whether the child could inherit from the donor's family. This is unsettled, because, as discussed above, the child's right to inherit from the donor is unclear.

How can I ensure my donation is used as I wish?
If you have donated sperm, you should consider broaching the subject with your estate planning attorney. This is especially so if you know you want to provide for the resulting child or if you know you want the sperm to be used by your loved one in the future. For anonymous donors you might consider the possibility of disinheriting any unknown children born as a result of anonymous sperm donation.

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