Can Sperm or Egg Donors Assert Child Custody Rights in Florida?
Many Florida couples choose to conceive a child through artificial insemination. In some cases, the couple use their own genetic material (i.e.., eggs and sperm) to conceive. In other situations, the future parents have a donor contribute their eggs or sperm.
A question you might have about this process is whether or not the donor has any parental rights after the child is conceived and born. In general, the answer is no. Florida law provides that the “donor of any egg, sperm, or preembryo” relinquishes any parental rights to children conceived from their donation. There are two exceptions:
- The donor is a partner in the “commissioning couple”; or
- The donor is a father who exercised a preplanned adoption agreement.
In these scenarios, the donor may be able to seek a paternity declaration or sue for child custody.
Florida Courts Split on Legal Meaning of “DIY” Artificial Insemination
In most cases, couples that choose to conceive through donor-assisted artificial insemination do so under medical supervision. For example, the couple will go to a clinic that specializes in assisted reproductive technology. Interestingly, however, there are couples that opt for a “do-it-yourself” approach and conceive children through artificial insemination at home.
Does the decision to go DIY have any legal significance? It might. Recently, the Florida Second District Court of Appeal addressed a paternity case, Rivera v. Salas, where a sperm donor unsuccessfully sought custody of the conceived child. In this case, a same-sex female couple wished to conceive a child. The plaintiff donated his sperm. The couple then successfully conceived using at-home artificial insemination. The couple subsequently married.
Sadly, the couple later separated after the child’s birth. At that time, the sperm donor petitioned for a determination of paternity, presumably so he could establish custody rights. A trial court denied the donor’s request, citing the Florida donor law discussed above. The Second District then affirmed that decision on appeal.
But as the Second District explained in its opinion, there is more to the story. In a 2022 decision, Enriquez v. Velazquez, the Florida Fifth District Court of Appeal addressed a case where an unmarried couple who were not in a relationship decided to conceive a child together using at-home artificial insemination. Although both parties agreed the sperm donor should have paternity and custody rights, the trial court held that was not allowed under Florida law.
As previously noted, Florida’s donor law makes an exception for donors who are part of the “commissioning couple” for the resulting child. Here, the trial judge concluded that a commissioning couple necessarily required the child to be conceived through artificial reproduction technology–i.e., in a clinic and not at-home. Since the child in Enriquez was conceived at home, the donor could not assert any parental rights. The Fifth District later affirmed this ruling.
The Second District disagreed with its sister court on this point. It noted the law applies to any donor of genetic material. It does not say anything about how that material is used to conceive the child. Accordingly, the Second District certified it was in conflict with the Fifth District, which means the Florida Supreme Court may eventually have to break the legal deadlock.
Contact a Tampa Child Custody Lawyer Today
Child custody disputes often raise complex legal questions, especially as more and more people elect to pursue parenthood through non-traditional means. If you need legal advice or representation from a skilled Tampa child custody disputes lawyer, call Florida Law Advisers, P.A., today at (800) 990-7763 to schedule a free, no-obligation consultation.
Sources:
flsenate.gov/Laws/Statutes/2024/0742.14
2dca.flcourts.gov/content/download/2437485/opinion/Opinion_2022-4066.pdf
