What Hopeful Parents Should Know About Sperm and Egg Donation in Colorado

PublishedJun 10, 2022

9 minute read

Advances in technology and state law mean that your ability to have and raise a child is no longer limited by infertility, gender, marital status, or sexual preference. You have options. So, whether you’re planning a baby right now or considering having one in the future, here is what you should know about sperm and egg donation in Colorado.

Connect with an Assisted Reproductive Technology Attorney

If you, by yourself or with a spouse or same-sex partner, are thinking of using assisted reproductive technology to start a family, our Family Law Team encourages you to look at your legal options and safeguard your parental rights. Call 303-688-0944 to begin your case assessment. Si gustarÍa hablar con nosotros en español, por favor llámenos al 720-359-2442.

Colorado Law Supports Sperm and Egg Donation

Since the birth of the first test tube baby in July of 1978, reproductive science has advanced faster and further than most federal and state laws governing it. Rising success rates with surrogacy and sperm and egg donations have enabled more individuals and couples to have children, but there have been major legal hurdles for some parents to have their legal rights recognized.

Colorado has passed new laws and adjusted existing ones to better reflect modern family-making. Assisted Reproductive Technology or “third-party reproduction” is now recognized as a valid, popular, and legal recourse for starting a family.

What is Assisted Reproductive Technology?

Assisted Reproductive Technology (ART) is any method for causing pregnancy other than sexual intercourse. It is medical science stepping in to help so any couple that wishes to have children can do so, regardless of marital status, sexual preference, or biological ability. Sperm and egg donations are big parts of it.

Types of Assisted Reproductive Technology

In-vitro fertilization or IVF

IVF is one of the most popular methods of ART and involves sperm and egg donation. In IVF, eggs are removed from the ovaries, fertilized by sperm in a controlled laboratory, and the resulting embryo is then placed back inside the woman’s body to form a pregnancy. Donors can provide sperm, an egg(s), or both.

Sperm donation

A third party donates healthy reproductive sperm so the intended parent or parents can achieve pregnancy. Depending on the individual’s or couple’s needs, the sperm is used for various types of artificial insemination or IVF. The donor has no rights or responsibility to the resulting child unless he and the woman sign a prior agreement.

Gestational surrogacy

A woman who carries and delivers a baby for an individual or couple. In gestational surrogacy, eggs are retrieved from the intended mother or a donor and fertilized with sperm from the intended father or a donor. The resulting embryo(s) are transferred to the gestational surrogate.

Genetic “traditional” surrogacy

A woman who will not be an intended parent becomes pregnant with sperm from one partner of the couple or a donor and gives birth to the child. Since this surrogate is using her own egg, she will be the biological mother of the baby until she signs over that right to the intended parent(s). Genetic surrogacy comes with serious legal risks during and after the pregnancy.

Cryopreserved embryos or gametes

A healthy embryo, or the reproductive sperm and eggs for making one, is preserved in liquid nitrogen at -321º Fahrenheit (-196º Celsius) until they can be added to a controlled process such as those listed above.

Colorado is an ART-Friendly State

Not only does Colorado offer world-class fertility clinics, but its legislature passed meaningful pro-ART laws and statute adjustments in 2021 and 2022.

Key Statutes

In 2016, Colorado Revised Statute § 19-4-106 set forth legal guidelines for married partners intending to become parents through artificial reproductive technology, including sperm and egg donation.

“(1) If, under the supervision of a licensed physician or advanced practice nurse and with the consent of her husband, a wife consents to assisted reproduction with sperm donated by a man not her husband, the husband is treated in law as if he were the natural father of the child thereby conceived.”

The revised statute made the same assertion as above for situations when a ‘wife’ consents to become pregnant with an egg donated by another woman to conceive a child for herself. The ‘wife’ is treated in law as the natural mother of the baby.

The Colorado Surrogacy Agreement Act

In 2021, the Colorado Surrogacy Agreement Act set forth consistent standards and processes to safeguard the best interest of children born because of a surrogacy agreement. It also protects intended parents, gestational carriers, and traditional surrogates who have entered into agreements that conform with procedures laid out in the Act.

Marlo’s Law

In May of 2022, HB22-1153, known as “Marlo’s Law,” removed most gender-specific nouns (such as ‘husband’ or ‘father’ and ‘wife’ or ‘mother’) so that Colorado reproduction statutes could apply more consistently and protectively to intended parents who are lesbian, gay, bisexual, transgender, queer, and same-sex couples.

Our article about Marlo’s Law also discusses how it made confirmatory adoptions of children created through sperm and egg donation much easier than they had been before.

Note: While Colorado is friendly to and supportive of families that use assisted reproductive technology, it is still imperative to follow established guidelines to ensure legal durability.

Let’s also take a moment to be grateful these guidelines now exist and examine how the legal system reacted to assisted reproductive technology when the two first met.

In the Matter of Baby M (1988)

The United States was awakened to both the possibilities and perils of third-party reproduction in the mid-1980s with the case of “Baby M.”

A wealthy New Jersey couple, William and Elizabeth Stern, agreed to pay Mary Beth Whitehead $10,000 to serve as the couple’s genetic surrogate using Stern’s sperm. Whitehead, a married woman with two children already, agreed to carry the pregnancy to term and relinquish all parental rights, except to be sent occasional photos and letters on the child’s progress in life.

After giving birth, Whitehead became emotionally bonded to the infant girl and tried to break her contract with the Sterns. The incredibly nasty fight that ensued became the nation’s first contested surrogacy case, and it ultimately went before the New Jersey Supreme Court.

An Unsatisfying Decision

The Court awarded custody of Baby M to the Sterns, but it also voided the surrogacy contract and gave Whitehead parental visitation rights despite tape recordings of Whitehead threatening to kill the baby and take her own life, rather than return Baby M.

The Court heard those tapes. But it took a deeply negative view of the surrogacy contract, calling it “illegal perhaps, criminal and potentially degrading to women,” among other things.

“The surrogacy contract violates the policy of this State that the rights of natural parents are equal concerning their child, the father’s right no greater than the mother’s. The parent and child relationship extends equally to every child and to every parent, regardless of the marital status of the parents.” – In the Matter of Baby M, New Jersey (1988)

Bottom line? State laws weren’t ready for assisted reproductive technology in the 1980s.

Postscript

Despite the suspicious stance courts and lawmakers took toward surrogacy at the time, the sensational case grabbed the nation’s attention. It gave hope to couples who had the desire but not the biological ability to conceive children on their own. The rates of surrogacy and sperm and egg donation increased.

In 2004 Melissa Stern, who had once been known as “Baby M,” legally severed Whitehead’s parental rights, then filed her own adoption papers to legalize Elizabeth Stern as her rightful mother.

Protect Your Rights if You Use a Sperm or Egg Donor

While the social and legal landscape around assisted reproduction has grown more welcoming over the years, parental challenges can and do still occur. Therefore, it’s wise to follow recognized legal standards through the process, or even better, go forward with the assistance of an experienced family law attorney.

Whether an intended child is produced by a third party’s sperm, eggs, embryo, or a surrogate womb, Colorado law makes clear that “a parent-child relationship does not exist between a child of assisted reproduction and a third-party donor.” (C.R.S. § § 15-11-120(2)).

IVF (In-vitro fertilization) Guidelines to Follow

Before you begin the months-long process of IVF, it’s important to understand how to strengthen your legal claim to the child.

Create a Legal Agreement

If the donor is known by one or both intended parents, get an agreement drawn up establishing parentage, signed by all parties, and witnessed by a notary.

Follow State Statutes

Make sure the IVF procedure is conducted by a qualified physician or reputable fertility clinic. It is possible for a woman to inseminate herself with donated sperm, but skipping the professionals negates the statutes as written.

In the Interest of R.C. (Colorado, 1989)

An unmarried woman (E.C.) received a sperm donation via artificial insemination from a known donor (J.R.) who she initially agreed, in writing, to treat as the father. In 1986, the woman gave birth to a son and named him R.C.

Later, the mother was made aware of a Colorado statute eliminating the sperm donor’s right to be recognized as the father. She proceeded to refuse to let J.R. see the baby unless he signed a release of his parental rights. The donor refused, then sued for paternity rights in Denver Juvenile Court.

The juvenile court sided with the mother. The court stated that the statute should govern the dispute, regardless of the prior written agreement between the mother and the sperm donor or the mother’s unmarried status. (The statute specifically references husbands and wives.)

The Sperm Donor Appeals

J.R. took his argument to the court of appeals, which kicked the case up to the Colorado Supreme Court due to its precedent-setting importance.

The Colorado Supreme Court sided with the donor, reversing the juvenile court’s earlier ruling. It held that since the statute was ambiguous concerning assisted reproduction agreements between a known donor and an unmarried donee, the prior written agreement carried weight.

“Where, however, the unmarried recipient and the known donor at the time of insemination agree that the donor will be the natural father and act accordingly based on an express understanding that he will be treated as the father of any child so conceived, we concur with commentators … that agreement and subsequent conduct are relevant to preserving the donor’s parental rights despite the existence of the statute.” – In Interest of R.C., 53 Colo. 775 P 2d 27 (1989)

Bottom line: The statute is solid, but when the source of the sperm or egg donation is known, getting a signed agreement by all parties before conception is the best way to eliminate the donor as a legal threat to the intended parents.

Surrogacy Guidelines to Follow

A surrogacy arrangement is when a woman agrees to carry a pregnancy to term for an intended parent or parents. Both gestational and genetic surrogacies are legal in Colorado, providing they follow established standards set by state law. It does not matter if the woman is paid to be a surrogate or if she does it for altruistic reasons.

Thanks to the Colorado Surrogacy Agreement Act, there is a well-defined process intended parents and potential surrogates should follow. It begins with eligibility.

Surrogacy Eligibility Requirements

Intended parents and surrogates must be over the age of 21
Surrogates must have already given birth to at least one child
Intended parents and surrogates must each complete a medical evaluation
Surrogates must complete a mental health consultation
Each party must retain legal representation by an attorney licensed in Colorado
Both parties must enter into a surrogacy agreement
Intended parents, as well as the surrogate and her spouse, must be a party to the agreement
At least one of the intended parents or the surrogate must be a Colorado resident, and either the birth or the method of assisted reproduction pursuant to the surrogacy agreement must occur in Colorado
All parties must sign the agreement in the presence of a notary
The agreement must be drafted and signed before any medical procedure occurs (other than the medical evaluation)

Creating a Surrogacy Agreement

Setting aside the medical and biological processes, nothing is more crucial than securing and executing a legally binding agreement, which we discuss in more detail below. Also, at this point, whether you’re the intended parent or surrogate, you should have retained an attorney.

The steps of drafting and filing a typical surrogacy agreement:

The intended parents’ attorney drafts a legal surrogacy agreement
The surrogacy agreement is reviewed by the surrogate’s attorney
Once all parties agree to terms, all sign the document
After a pregnancy is confirmed, the intended parents’ attorney files a pre-birth parentage action in a Colorado District Court.

A pre-birth parentage action establishes the intended parents as the legal parents once the child has been delivered and eliminates the surrogate from any legal rights or responsibilities to the child.

Terms Covered by a Typical Surrogacy Agreement

The relatively short legal history of assisted reproductive technology makes clear that there are multiple issues to address before the process gets underway. Whether the intended parents and the surrogate have been matched through an agency or already knew each other, the following considerations should go into a surrogacy agreement:

The parties’ intentions must be clear and in writing.
What pre-screening shall occur?
Will any background checks need to be done?
What kind of releases, such as HIPPA, will be executed?
What payments will be made, when, and for how much?
Address any tax issues that could arise.
Will life insurance be purchased for the surrogate?
Sort out health insurance issues. Will any party’s provider offer coverage or will independent health coverage need to be purchased for the surrogate?
What conception and medical instructions will be included?
Address lifestyle prohibitions, such as smoking, drinking, or physical exertion during pregnancy.
Address pre-natal care.
Will the surrogate be restricted from travel during the pregnancy?
At which hospital will the delivery occur?
What are the expectations of confidentiality and future contact between the intended parents and the surrogate?
Sort out the termination of parental rights and birth certificate issues.
What is the choice of law provision?
Under what circumstances should abortion or selective reduction occur?
When would any party be considered in breach of contract?
Whether and how to address constitutional rights and waivers in the agreement.
Address how any future disputes shall be resolved.

Since the interests of both the intended parents and the gestational or genetic surrogate must be fully considered, it is necessary for each side to be represented by their own attorney.

The Confirmation Adoption Process

Thanks to the passage of Marlo’s Law, and no matter if the child was produced by in-vitro fertilization or surrogacy, the intended parents can easily confirm the child’s adoption by filing a simple form in district court.

The court has 30 days to approve a properly filed petition, which should include the birth certificate with the intended parents’ names on it.

How a Family Law Attorney Can Help

Having compassionate counsel will prove invaluable beyond the necessity of a surrogacy agreement. No matter what form of assisted reproductive technology you and your partner are considering, an experienced family law attorney can help everything go smoother in the following ways:

Provide referrals to qualified fertility clinics, surrogacy agencies, and egg donation agencies
Identify appropriate gestational surrogates through agency referrals or other connections
Draft comprehensive contracts to protect your rights in surrogacy-related cases, and also in egg, embryo, and sperm donation situations
Offer informative and insightful consultations to cover all your options, while addressing issues you and/or your partner might not have considered
Assist with communication during gestation, evaluate a surrogate’s ability to detach from the child prior to matching, and give advice on matters such as abortion or selective reduction
Expedite the child’s birth certificate and, if necessary, a United States passport so that international clients can return to their country without unnecessary delay following the child’s birth in Colorado.

Protect Your Parental Rights

If you are considering assisted reproductive technology to start a family, we encourage you to speak with a family law attorney who specializes in this burgeoning area of law. Our ART attorneys can also help ensure your parental rights in the event your relationship does not work out. Call (303) 688-0944 to begin your case assessment. Si gustarÍa hablar con nosotros en español, por favor llámenos al 720-359-2442.

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