Donor agreement: what does it cover and what can it not settle?

A donor agreement records what a sperm donor and the intended parents agree about the donor’s role: whether there will be contact with the child, what information will be shared, and that the donor will not seek legal parenthood or authority over the child. The agreement cannot settle everything: legal parenthood follows from the law, not from the contract, and an agreement cannot bind the child.

Under Article 1:198 of the Dutch Civil Code (BW), the woman who gives birth is always the child’s legal mother. A known donor does not become a legal parent simply by donating; parenthood arises through marriage or registered partnership with the mother, recognition, or adoption. A donor who has built a close personal relationship with the child can still ask the court for contact (Article 1:377a BW), and the donor agreement is then the first document the court looks at.

What is a donor agreement?

It is a written contract between the intended parent(s) and a sperm donor. Dutch clinics and family lawyers distinguish two types of donorship: type B (a clinic donor) and type C (a known donor).

Type B donorship means the donor is selected by a clinic and unknown to the intended parents. Under the Donor Data (Artificial Insemination) Act (Wet donorgegevens kunstmatige bevruchting), he is registered with the Donor Data Foundation (Stichting donorgegevens kunstmatige bevruchting). From the age of 12, the child can request the donor’s basic data, such as appearance, profession, family situation and character traits; from the age of 16, also his name, date of birth and place of residence.

Type C donorship involves a donor known to the intended parents, usually someone from their circle of family or friends or someone they found themselves, for example online. Most donor agreements concern a type C donor. There is no clinic waiting list, but there is also no clinic framework, so the agreements must be recorded in writing.

If a dispute arises, the agreement shows what the parties intended when they signed it. Courts, such as the Court of Appeal of The Hague in the ruling discussed below, rely on it to establish the donor’s role.

What should a donor agreement cover?

At least the identity of the parties, the donation itself and the donor’s role towards the child. A donor agreement usually records:

• Name and address details of the donor and of the intended parent(s)
• Agreements on the donation itself, such as duration, method (artificial insemination), communication and handling
• Medical aspects, such as screening for hereditary conditions, and permission to access medical data
• Any allowances, usually travel costs and the costs of the donor’s medical examinations
• The donor’s rights and obligations, including contact and information about the child
• Anonymity and privacy
• Liability of both parties and provisions for a change in circumstances

What are the donor’s rights and obligations towards the child?

A donor has no automatic legal role towards the child. He can only become a legal parent by recognition, which under Article 1:204 BW requires the mother’s consent (and from age 12 the child’s) and is impossible if the child already has two legal parents.

How do you protect legal parenthood?

Discuss beforehand whether the donor wishes to recognise the child or seek custody, and record the answer. If the mother has a female spouse or registered partner, that partner becomes a legal parent automatically only with a type B donor, on submission of a statement from the Donor Data Foundation (Article 1:198(1)(b) BW). With a known donor, the partner must recognise the child, preferably before the birth.

Will there be contact between donor and child?

Agree whether there will be contact and, if so, how often and under which circumstances. Arrangements vary widely: one donor sees the child every month, another not until the child turns 16. Remember that a donor with a close personal relationship with the child can still apply to the court for contact under Article 1:377a BW, whatever the agreement says.

Does the donor have to pay child maintenance?

Not as a pure donor. A man who is not a legal parent only owes maintenance as the child’s procreator (verwekker) under Article 1:394 BW, which requires conception by natural means. In ECLI:NL:GHDHA:2022:900 (18 May 2022), the Court of Appeal of The Hague held that a known donor who provided sperm for artificial insemination, without family life with the child, was not a procreator and owed no maintenance.

This makes the agreement important for the donor too: it records that conception took place by artificial insemination and that he acted only as a donor. If he later recognises the child, he becomes a legal parent and does owe maintenance.

What should you check as intended parents?

Check that the agreement protects your legal parenthood and your family life. In particular:

• Record that the donor will not recognise the child or seek custody.
• Have the non-birth partner recognise the child before the birth if the donor is known.
• Record the agreed contact frequency and what happens if the donor moves.
• Agree what the child will be told about the donor and when.
• Record that conception takes place by artificial insemination only.

What should you check as a donor?

Check that the agreement limits your role to that of donor. In particular:

• Record that you act only as a donor, by artificial insemination.
• Record the contact and information you can expect about the child.
• Agree on the reimbursement of travel and medical costs only, without further payment.
• Check the clause on medical screening and access to your medical data.
• Agree how the agreement is reviewed if circumstances change.

When should you update a donor agreement?

When circumstances change, for example a house move that affects contact arrangements, a new partner, or a donor who wants more involvement. An updated agreement signed by both parties gives the court a current picture if an application under Article 1:377a BW is ever made.

What can we do for you with a donor agreement?

Our family law attorneys advise intended parents and donors.

• We draft a donor agreement tailored to your type C arrangement.
• We review an existing agreement and update it after a change in circumstances.
• We advise on recognition by the non-birth partner before the birth.
• We assess a maintenance or contact claim against the agreement and current case law.
• We represent intended parents or donors before the district court in a dispute.

Summary

• A donor agreement records the arrangements between intended parents and a sperm donor, but cannot itself determine legal parenthood.
• Dutch law distinguishes a type B donor (unknown, via a clinic) from a type C donor (known to the intended parents).
• A donor child can request the donor’s basic data from age 12 and identifying data from age 16.
• A known donor can still apply for contact based on a close personal relationship with the child (Article 1:377a BW).
• A donor who only provided sperm for artificial insemination is not a procreator and owes no child maintenance (ECLI:NL:GHDHA:2022:900).

Frequently asked questions