How to Legally Protect Sperm or Egg Donors in South Carolina

Infertility is a deeply personal challenge that affects countless hopeful parents in South Carolina and across the country. Fortunately, advances in Assisted Reproductive Technology (ART) are transforming what is possible and opening the door to new pathways to parenthood for parents who are struggling to have a child.

For individuals who are considering becoming egg or sperm donors, the decision to help someone else build a family is generous and significant, but it carries important legal implications. At the time of this post, South Carolina does not have a donor statute to automatically terminate the rights of donors. This means there must be a court order to effectively terminate their right supported by a valid donor agreement signed before conception. Having a carefully prepared donor agreement is essential to protect your rights, clearly define your role, and prevent misunderstandings.

The Legal Process of Egg and Sperm Donation

The legal process should be addressed before any egg or sperm donation takes place. While fertility clinics often focus on screening and treatment protocols, donors and intended parents should be equally focused on defining their legal rights and obligations.

Egg and sperm donors generally connect with intended parents in one of three ways: through an agency, through a fertility clinic, or on their own. Depending on how they connect with the intended parent, a donor may need to enter into an agreement directly with the intended parent(s), or they may only need to execute a consent document with the fertility clinic.

In situations where the donor and intended parent(s) do not know one another, the contractual legalities are often addressed at the time of donation at the clinic where the procedure is being performed. However, donors should still have the agreement reviewed by an experienced ART lawyer to ensure the agreement provides them with the necessary legal protections.

When the donor and intended parent(s) know one another, both parties should retain independent legal counsel to ensure everyone’s legal rights are fully explained and protected.

Regardless of whether or not the donor and the intended parent(s) know one another, a donor agreement should be in place. A well-crafted donor agreement should clearly address:

• Compensation
• Reimbursement of medical and other expenses
• Confidentiality
• Anonymity
• Assumptions of medical risk
• Contingencies, such as what happens to unused genetic material
• Termination of inheritance rights by the child from the donor

Egg Donor Protection

Women who are considering becoming egg donors should be aware that the egg donation process is more invasive than it is for sperm donors. Egg donors are typically required to take fertility medications and undergo medical procedures that carry certain risks. Women who are considering becoming an egg donor should consult with a medical professional to ensure they understand the risks.

Potential egg donors should complete an egg donor contract. The contract should identify the egg donor's legal rights and potential liabilities, and address the compensation they will receive for the egg donation.

Women who work directly with the intended parent(s) should hire independent legal counsel to draft or review the egg donor contract to ensure it satisfies legal requirements.

Sperm Donor Protection

Because the sperm donor collection process is less invasive than the egg donor process, many fertility clinics use so-called “standard” donor agreements that are completed when the sperm donor submits a donation. Under certain situations, a man who donates sperm could legally be considered a father and be obligated to provide financial support for any child that results from the donation. Therefore, sperm donors should have legal counsel review the donor agreement before submitting a sperm donation.

How Brinkley Law Firm Can Help

An international leader in the field of fertility law, Stephanie M. Brinkley is the Immediate Past-Chair of the American Bar Association’s ART Committee and has lectured before the Paris Bar Association, International Surrogacy Forum in Denmark and South Africa, the Benjamin N. Cardozo School of Law in New York City, and in South Carolina, where she has presented before local and state bar associations on the complexities of third-party reproduction and family law. She has been published in the French law magazine, Droit & Patrimonie (Law & Heritage) and is the co-author of Developing a Successful Assisted Reproduction Technology Law Practice, written with colleague Richard B. Vaughn, which is published by the American Bar Association.