Dear Straight Dope: I’m looking for the straight dope on paternity law involving sperm donation. How likely is it that a guy could wind up owing child support in exchange for his efforts and the quick cash at the donation center? I have yet to hear anything but hearsay on the issue. Nick from Indiana
Nobody’s really sure, Nick. Believe it or not, the law is just catching up with these newfangled biological advances. There’s a case pending before the Pennsylvania Supreme Court on the issue of sperm donor child support, and some states have handled it by statute. Most courts that have considered the question have ordered the donor to pay support, which may seem a perverse result, but the issue is more complicated than you might think.
The parties in the Pennsylvania case, Joel McKiernan and Ivonne Ferguson, met at work and had a two-year extramarital affair. After the affair ended, Ferguson asked McKiernan to help her conceive. The two agreed McKiernan would not be obligated for child support if he acted as sperm donor. (Ferguson had had a tubal ligation and could only conceive by in vitro fertilization, or IVF.) She had another man pose as her husband, told the doctor it was her husband’s sperm, and had twins. McKiernan had little contact with the twins at first, but five years out Ferguson thought better of their agreement, sued McKiernan for child support, and won. In 2004, the Superior Court of Pennsylvania affirmed the trial court’s decision ordering McKiernan to pay $1,500 a month to support the twins. The court reasoned that the contract between McKiernan and Ferguson was unenforceable — a parent can’t bargain away a child’s right to support. The Pennsylvania Supreme Court has not yet decided the case.
This isn’t the only case in which a sperm donor has been ordered to pay support, nor is it the only case involving nontraditional ways of getting pregnant. First, there are the stolen sperm cases. For example, in a New York case, Deon Francois banked some frozen sperm at an NYU lab while he and his wife were trying to get pregnant. They broke up; he moved out, stopped paying the storage fee to NYU, and assumed NYU would discard the sperm. Instead, his estranged wife forged his signature on a release and notarized it with a stolen notary stamp. She used the release to get the sperm from NYU, which hadn’t discarded it; got pregnant; and then sought child support in her divorce case. The judge awarded her $150 per week.
In other cases women have inseminated themselves with sperm from fellatio or from a condom (or so their male acquaintances alleged), then sought child support — and won. That’s because the paramount consideration in child support cases is providing the child with support from two parents. Wisely or not, courts traditionally have defined parents as those who contributed the gametes that made the baby. In most cases, courts will overlook the adults’ agreements or despicable conduct in the interest of providing for the children.
Establishing parentage on the basis of genetics is a double-edged sword. Genetic parents can be required to pay child support, but they can also get custody and visitation rights, sometimes even if they’ve agreed they won’t be a parent. It gets even more complex when we factor in surrogacy and embryo implantation. For example, in a New York case, Perry-Rogers v. Fasano, Donna Fasano underwent IVF and gave birth to two male infants of two different races. One child was the result of mistaken implantation of an embryo created with genetic materials from another couple, the Rogers. A New York appellate court awarded the Rogers exclusive custody of their genetic child. The Fasanos wanted visitation rights but their request was denied — Donna Fasano had given birth to the child but was not genetically related to him.
In another case from California, Robert B. and Denise B. v. Susan B., Susan Buchweitz was accidentally given Robert and Denise B.’s embryos during IVF. According to the court, Robert and Denise B. had contracted with an anonymous ovum donor to obtain the donor’s eggs for fertilization with Robert’s sperm. Meanwhile, Susan went to the same fertility clinic with the intent of purchasing genetic material from “two strangers who would contractually sign away their rights” so that “there would be no paternity case against her, ever.” She therefore contracted with the clinic for an embryo created from anonymously donated ova and sperm. About 13 embryos were produced for Robert and Denise. In June 2000 some of them were implanted in Denise’s uterus. Apparently through clinical error, Susan received three of these embryos. When she became pregnant, Susan believed the child she was carrying was the result of the anonymous procedure for which she had contracted. In February 2001, 10 days apart, Susan gave birth to Daniel and Denise gave birth to Daniel’s genetic sister, Madeline. Learning of the mistake, Robert and Denise sued Susan for parental rights to Daniel. The trial court awarded temporary custody to Susan and visitation to Robert, the genetic father. Denise was left out of the picture because she had no genetic connection to the child.
Some jurisdictions have adopted a version of the Uniform Parentage Act (either the 1973 version or the 2000 version), which tries to settle some of these issues. Among other things, the act makes clear that in most cases donors aren’t parents. But only about a third of the states have adopted some version of the UPA, and in states that have, courts tend to interpret the law narrowly. For example, several cases under the 1973 version of the act hold that the donor provisions don’t bar claims involving known sperm donors unless the sperm was obtained and implanted by a licensed physician. Presumably the rationale is that if sperm donation is handled professionally, we’ll absolve the donor of parental responsibility, whereas if we’re talking about the tawdry dealings of the trailer-park set, we’ll continue to let genetics be our guide.
To further complicate matters, in the U.S. the law changes if the child is moved to a different state, at least under some circumstances. So yes, sperm donors are sometimes liable for child support, and it doesn’t look like the situation will change any time soon.
FROM THE TEEMING MILLIONS
Regarding the question on sperm donors’ parental obligations, the original question seemed to be more concerned with the anonymous sperm bank donor’s potential child support obligations. Your answer mentioned that in states that honor the Uniform Parentage Act, donors are absolved if the sperm was collected and disseminated by a licensed physician, as is presumably the case in most reputable sperm banks. However, is there precedence for an anonymous donor having been sued in a state that does not follow the UPA? One can imagine a “Made in America” scenario where a donor sues the parent for visiting rights to a child they discover carries their genetic material, but could the parent sue an unsuspecting donor using the same argument? For the record, I hope not.
— Mason, Boston, MA
SDSTAFF Gfactor replies:
Fair question. There are no reported U.S. appellate cases holding an anonymous sperm donor responsible for child support, nor are there any cases holding that an anonymous sperm donor is not responsible – there aren’t any cases, period, no doubt because of the anonymity. Some courts have discussed anonymous donors in passing, suggesting they were a special case and weren’t responsible for support. But the UPA doesn’t cite anonymity as a factor in determining parental responsibility, according to the California Court of Appeal in Steven S. v. Deborah D.
The only reported case enforcing a subpoena for donor information also comes from California. In that case the donor was required to give a deposition and produce documents. The California Supreme Court had thwarted efforts to gain access to the clinic’s donor records, so the case arose only after the child’s representatives found the donor by other means.
UPDATE! MORE STRANGE RULINGS
Jack from Michigan wonders why my report didn’t include State ex rel. Hermesmann v. Seyer (1993). When I read it, I wondered the same thing. In Hermesmann, a 12-year old boy had a sexual relationship with his babysitter. The state said the tweenaged dad was liable for child support even though all agreed the baby resulted from statutory rape. Reviewing cases from Wisconsin and Colorado that imposed child support obligations on underage fathers, the court noted: “We conclude that the issue of consent to sexual activity under the criminal statutes is irrelevant in a civil action to determine paternity and for support of the minor child of such activity.” This is a broader conclusion than that reached by the other courts, which had focused on the minor’s actual consent — they said it’s one thing to hold the perpetrator liable for statutory rape based on the legal irrelevance of consent and quite another to excuse the victim from obligations based on actual consent. Hermesmann suggests even a forcible rape of a boy could result in a child support award.
As with other paternity issues, this one cuts both ways. Some courts have granted statutory rapists custody of their offspring. In the most recent case, the victim, then 14, claimed that the 40-year-old father forced her to have sex with him for two years, during which time she conceived two children. Her rapist (it’s statutory rape whether or not the underage partner consents) got custody of one of the children. The case is currently on appeal.
Others have written to point out the other end of the paternity spectrum: the marital presumption. Under this presumption, children born during a marriage are presumed to be fathered by the husband. In most jurisdictions, this presumption can be challenged by the husband or someone claiming to be the biological father, but only up to a point. Many courts hold that a husband who doesn’t rebut the marital presumption the first time it comes up (usually during a divorce) can’t revisit the issue later, even if the husband had no reason to doubt his paternity during the original case. Courts usually explain this as part of a broader doctrine called the principle of finality — once a judgment is entered it can’t be contested except on narrow grounds, among which “I just found some new evidence, so I’d like another try” gets pretty short shrift. In many jurisdictions, the time to reopen a judgment based on newly discovered evidence is limited to one year, and even then it’s an uphill battle. After a year, the dad is pretty much out of luck. Finally, some states impose time limits after which the marital presumption can’t be rebutted, divorce or no.
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STAFF REPORTS ARE WRITTEN BY THE STRAIGHT DOPE SCIENCE ADVISORY BOARD, CECIL'S ONLINE AUXILIARY. THOUGH THE SDSAB DOES ITS BEST, THESE COLUMNS ARE EDITED BY ED ZOTTI, NOT CECIL, SO ACCURACYWISE YOU'D BETTER KEEP YOUR FINGERS CROSSED.