The legal situation between the couple wishing to have a child, the child, and the donor
Generally, sperm donation in Germany is not anonymous. Intended parents and donors are, in principle, not known to each other. The donor agrees not to receive any information regarding the use of his donations, the identity or number of children conceived with the help of his sperm, or the parents of said children. On the donor side, there is no possibility of contacting the intended parents or a child conceived by them on their own initiative. Couples also do not have the possibility to contact the donor. Only the conceived child has the right to know the identity of the donor from the age of 16.
After the Sperm Donor Register Act came into force on 1 July 2018, the TFP Sperm Bank is obliged in this context to report the identity of the donor after the conception of a child to a central register in Cologne, which is located at the German Federal Institute for Drugs and Medical Devices (BfArM). The recipient of a sperm donation is legally obliged to inform the attending physicians about such a treatment with donor sperm no later than three months after the birth of a child. The archiving of the mother's, the child's, and the donor's data at BfArM is carried out under the highest data protection precautions and is in accordance with the legal requirements.
In order to find out the identity of the presumed father, the child born from donor sperm treatment can approach the TFP Sperm Bank from the age of 16. In this way, the available information is given to this child in the first step, provided that, after careful examination, there is a high probability that the donor is the father. If the child expresses the wish to come into personal contact with the donor, the TFP Sperm Bank will inform the donor and suggest a joint meeting. It is recommended to offer psychological support and preparation to the child and the donor.
Another possibility is for the child to contact BfArM in Cologne directly. After appropriate verification, all information regarding the donor identity will be handed over to the child there. However, the judicial determination of the legal paternity of the sperm donor is excluded:
"If the child has been conceived by medically assisted artificial insemination in a health care facility within the meaning of section 1a number 9 of the Transplantation Act using heterologous semen provided by the donor to a collection facility within the meaning of section 2(1) sentence 1 of the Semen Donor Registry Act, the sperm donor cannot be established as the father of that child", section 1600d(4) of the Civil Code.
This exempts the sperm donor in particular from claims in the area of custody, maintenance, and inheritance law.
In a contract, the couple wishing to have a child declares their consent to the treatment. A child conceived with the help of donor sperm is legally equal to a legitimate child and is entitled to maintenance and inheritance by its intended parents. Paternity cannot be contested later by any of the intended parents. This applies equally to married and unmarried couples. Same-sex couples should consider entering into a notarial agreement to adopt the conceived child by the co-parent. This is currently possible one year after the birth at the earliest.
A prerequisite for donor sperm treatment is a stable heterosexual or same-sex partnership in which both partners are psychologically capable of living and coping well with a child not descended from the male partner. Accordingly, the partners do not necessarily have to be married to each other.
In advance of the treatment, the intended parents make a contractual commitment to irrevocably accept custody and maintenance obligations. In March 2002, the so-called Children's Rights Improvement Act (§ 1600 BGB, KindRVerbG) came into force, which makes it impossible to challenge paternity and undermine the obligation to pay maintenance for the social father (for example, in the case of separation).
In the case of a married couple, the legal situation is comparatively clear, since a child from donor sperm treatment that is born during marriage is always initially considered to be legitimate. The only difference is that, according to § 1600 BGB, paternity can no longer be contested by either the wife or the husband at any time. This is declared in writing in advance. A notarial contract for donor sperm treatment for married couples is therefore neither necessary under civil law nor under professional law.
Unlike married couples, the situation is somewhat more difficult for unmarried couples, as it is legally doubtful whether paternity can be legally recognised in advance of treatment (i.e. before the birth of a child).
Therefore, it is advisable for unmarried heterosexual couples to consider concluding a notarial contract prior to treatment.
The following points should be clarified in terms of content:
The acknowledgement of paternity by the male partner after the birth of the child
The right of custody/right of access in case of separation of the intended parents
The payment of maintenance in the event of separation for the partner who cares for the child and cannot be (fully) employed
Regardless of whether you are partnered, married, or not partnered, we recommend signing a contract before a notary prior to treatment. The following points should be clarified:
Adoption by the co-mother after the birth of the child
The right of custody/right of contact with the child in the event of separation
The payment of maintenance in the event of separation for the mother who cares for the child and cannot (fully) work
Custody rights for the co-mother in the event of the mother's death in the period between the birth and the completed adoption proceedings
Would you like to know what other legal conditions apply to sperm donors? You can find more information about this under sperm donor rights and obligations.
Even the first step into our practise should be easy and convenient for you. Contact us now at your convenience, and arrange a consultation appointment for sperm donor selection.