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Contract – Domestic Relations – Parent & Child – Sperm Donor – Legitimation Action

Contract – Domestic Relations – Parent & Child – Sperm Donor – Legitimation Action

Even though it was plaintiff’s defendant-spouse who, through artificial insemination, was impregnated by the defendant-donor’s sperm, since plaintiff was also bound by the contract – in which the donor agreed never to file an action to establish paternity of the child born as a result of his donation – a subsequent amendment of the contract by the recipient and the donor could not take away plaintiff’s contractual rights.

We affirm the trial court’s ruling that the recipient breached the parties’ contract by filing a legitimation action.


Plaintiff and the defendant-recipient were married and wished to have a child. The defendant-donor agreed to donate his sperm. Through artificial insemination, the recipient became pregnant using the donor’s sperm.

Thereafter, all three parties entered into a contract. Among other provisions, the donor promised never to attempt to legitimate the recipient’s child, the recipient promised not to seek child support from the recipient, and plaintiff agreed to be bound by the contract.

A few years after the child was born, plaintiff and the recipient separated. A few months later, the donor filed a petition to legitimate the child.

Plaintiff filed this action, alleging the donor had breached the parties’ contract. Several months later, the donor and the recipient signed a document purporting to amend the parties’ contract and to release each other from the contract.

Although the trial court found that plaintiff had not proven any actual damages, and although the court denied plaintiff’s prayer for specific performance of the parties’ contract, the court did rule that the donor had breached the contract. The donor appeals.


We reject the donor’s argument that the contract “does not purport to grant any rights to [plaintiff]” and that any restrictions placed upon the donor “are subject to grant of rights reserved solely to [the recipient].”

While most of the contract’s provisions were directed at the donor and the recipient, the contract acknowledged that plaintiff was the recipient’s spouse and stated that plaintiff was “legally bound by all actions of the Recipient” and that plaintiff would “indemni[f]y and hold harmless the Donor with respect to each and every paragraph of this Agreement.” Plaintiff, who is listed as a parent on the child’s birth certificate, also relinquished all rights to seek child support from the donor.

The contract identifies plaintiff as a signatory and explains how any claims that might arise against the recipient and “her spouse” would involve plaintiff, implicating her right to litigate matters arising from the contract or the marriage. 

Even if the written agreement could not be interpreted by its plain language, we would have to interpret it against the donor as its drafter. As such we would conclude that, if the donor had intended for the contract to solely bind the recipient and himself, and to wholly exclude plaintiff, he had ample opportunity to do so.

Because the contract language illustrates plaintiff’s right as a party – or, at least, a signatory or participant – to the contract, plaintiff has standing to file a breach of contract claim.

The contract stated that “the relinquishment of any and all parental and custodial rights as set forth [therein]” and of “any claim to any support of any form or in any nature whatsoever” were “final and irrevocable.” The written agreement further held that donor would be “prohibited from filing any action to establish paternity, custody, or guardianship . . . .” When the donor filed his legitimation action on 13 May 2020, he went against these exact provisions and thus committed a material breach of the written agreement.

The donor’s argument that the amendment he and the recipient executed released him from all obligations set forth in the written agreement is of no moment, as the donor filed his legitimation action on 13 May 2020 and executed the alleged amendment several months later on 23 February 2021. Furthermore, plaintiff, as an original party to the written agreement, would have had to sign the amendment for it to bind her.

Lastly, the parties’ contract does not violate public policy. 

The donor argues the contract violates G.S. § 49A-1, because the statute requires that a couple seeking to get pregnant via artificial insemination execute a consent in writing prior to use of said of artificial insemination. Although the recipient was already pregnant when the parties entered into the contract, we agree with the trial court that the contract was binding.

Each party forewent a right to which he or she would have otherwise been entitled absent the agreement—namely, the recipient’s and plaintiff’s ability to receive support from the donor in rearing the child, and the donor’s ability to rear the child himself. Accordingly, we concluded that the written agreement does not violate § 49A-1.

Finally, the donor’s characterization of the written agreement as a contract for adoption misapprehends the law. Not only does the written agreement make no mention of adoption or synonyms thereof whatsoever, but G.S. § 49A-1, the statute that the donor correctly cites as controlling artificial inseminations, instructs that a child born by artificial insemination must be treated under law as “the same as a naturally conceived legitimate child of” the couple in question.


McLane v. Goodwin-McLane (Lawyers Weekly No. 012-230-22, 24 pp.) (John Arrowood, J.) Appealed from Iredell County District Court (Edward Hedrick, J.) Brien Bowlin for plaintiff; Alex Graziano, Christian Kiechel and Matthew Benton for defendants. 2022-NCCOA-359

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