Let me start out by saying I know this is a highly specific question and that it's unlikely anyone here has specific expertise in the exact area. As such I'm not demanding a perfectly definitive answer, I suspect there is no absolute answer, I'm more asking to better understand how choice of law decisions are made by applying a very specific use case I have run into not trying to get legal advice on rather or not to use such contracts.

I already asked, and got a pretty good answer, on the generalities of how choice of law are applied here. I think I understand the generalities, but I'm not sure which state has the more substantial claim in case of child support and what constitutes a 'public policy' strong enough for a forum state to refuse to respect the other states precedent.

So to give context known sperm donors are a thing, where a man agrees to donate sperm to a women without involving a doctor, to cut down on the extensive cost of doctor involvement. Generally it's agreed that a women will give up any claim to child support, and the donor give up on visitation rights, as part of this agreement. However, this will not always be supported by state law. In California donor contracts are fully supported, and there are a few states that explicitly do not support these contracts, the general claim is usually that a parent cannot sign away the child's rights to financial support or visitation, and the vast majority of states don't have any precedent either way. Given this the general advice given is usually that recipients should always get contracts 'just in case', and that donors should always understand that there is no guarantee such a contract will provide any legal protection, unless they all happen to live in CA obviously.

Given all that It makes me curious what happens if one person were lived in CA, the only state that definitely supports these contracts, and another person lived in a state that explicitly does not support these contracts what will happen? Can the people signing the contract simply say "CA law applies" and be certain their covered? Or is it possible that if the case is brought in the other state that state will refuse to respect this because they consider the signing away of child support to be violating it's public policy.

To further complicate things while it's possible to sign a contract in person and do the donation the same way it's also possible for donor sperm to be shipped across state lines, meaning that there may not be any clear answer as to where the contract was sign or the donation took place since both acts happened across state lines.

So, what is the probability that one could ensure CA law applies under these sort of circumstances? and if someone didn't explicitly state what state's laws should apply how would they decide which state's laws should apply?

If one person lived in a state without clear precedent and another in a state with a clear precedent would the fact that one state's laws are more explicit be a factor in deciding who should handle the dispute?

I'm mostly asking about child support being signed away, as claims against donors for child support are far more common then donors trying to force visitation, sometimes states will even force recipients who didn't want to claim child support to do so before they can get other forms of disability/welfare. Still I am curious if the rules would be any different for a dispute over visitation then for child support.

I'm also assuming the sperm donation was through artificial insemination done at home. As I understand it if the women gets pregnant by sex then it doesn't matter what contract you sign the donor is the legal father.

  • FWIW, there is a good general outline of assisted reproduction law in the U.S. as of 2019 at law.georgetown.edu/gender-journal/wp-content/uploads/sites/20/… and there is a nice annotated bibliography of legal scholarship in the area at readingroom.law.gsu.edu/cgi/…
    – ohwilleke
    Commented Feb 11, 2022 at 17:43
  • Closer to on point law review article from 2013 especially at pages 1742-1745. scholarship.law.wm.edu/cgi/viewcontent.cgi?referer=https://… and this article from 2014. scholarship.law.duke.edu/cgi/…
    – ohwilleke
    Commented Feb 11, 2022 at 17:49
  • 1
    The domicile of the sperm donor and of the inseminated mother would have asymmetrical importance, and also important would be the place of conception, the place of birth, the domicile of the child at the time of the lawsuit would all matter, and the place of contract formation. Visitation is governed by home stead per the UCCJA (state law) and the PKPA (federal law) but somewhat contingently upon paternity establishment. Adoption choice of law cases would be pertinent too.
    – ohwilleke
    Commented Feb 11, 2022 at 17:58

1 Answer 1


It depends on the law

Let’s assume there is a valid contract with a choice of law clause nominating CA. In a CA court, that contract would be enforceable.

Let’s assume that there is another state, XE, with some connection to the contract such that a court in XE decides it has jurisdiction. The court will look at XE law and decide if there are elements of (or the entire) contract that are invalid under XE law. This might be because XE law contains certain provisions with a “no contracting out” clause or because the particular contract is against public policy in XE. If there are, those elements of the contract will be excised and what remains, if anything, will have CA law applied to it.

The legal principle here is that contracts are made under the law and that, if a XE court decides it has jurisdiction then XE law applies around the contract but CA law applies within the contract - for want of better terms.

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