With the relentless grim news and crises we face on a daily basis, sometimes we tend to trivialize the marvels in our midst. Among them are the many monumental scientific advances which have enhanced our daily existence; stunningly exotic on their announcement, they often become part of our daily routine and taken for granted.
So it is with in vitro fertilization, a concept which has rapidly become commonplace. It has made it possible for couples to have children when it seemed otherwise impossible. Inevitably the process has created legal issues, primary among them the question of support for a child conceived through in vitro fertilization.
Traditionally, we have imposed the obligation of support upon a child’s parents. Our courts have uniformly held that a mother may not bargain away the rights of her child by entering into an agreement with its father limiting his obligations to the child. Such agreements are generally ignored by our courts which look to the financial capabilities of each parent including who should pay what amount of support, irrespective of any formal agreement between the parents to the contrary. It is a matter of strong public policy that a child be given all the material support the parents can afford.
The question recently raised in Pennsylvania is whether the traditional rules relating to child support apply to the circumstance where a woman has induced a man to donate his sperm for in vitro fertilization by entering into an agreement excusing the father from any obligations to the child. The Pennsylvania Superior Court in a recent ruling, Ferguson v. McKiernan, has ruled definitively on the issue for the first time.
In this case the parties had entered into an agreement, even though it had not been in writing. The parties had what in the opinion was described as an “on-again off-again affair” for a couple of years. When the affair was ending Ms. Ferguson asked Mr. McKiernan whether he would be willing to donate his sperm on the condition that she would neither reveal who the father is nor seek any kind of support in rearing what turned out to be twin boys.
In its ruling the Court imposed the obligation of support upon the father as though the children had been conceived naturally. The judges reasoned that the method of conception was irrelevant and that the rights of the child were paramount.
The Court seemed to stress its finding that the parties had entered into a legal agreement, even though it was oral, and that it chose not to enforce that portion dealing with child support. It must therefore be inferred from the ruling that a written agreement would have made no difference.
What made the difference was the fact that the identity of the father was clear. If the mother had dealt with a sperm bank where the anonymity of the father was preserved, the outcome obviously would have been different. But is it possible ever to preserve anonymity? Owners of sperm banks know who the donors are, and in fact will give the prospective mother a detailed profile of the donor to aid in her decision (“Yours can be the next Einstein!”). Such records are always subject to subpoena, and the identity of the father could nearly always be established (and confirmed by DNA testing).
Men who may have felt secure in the (false) assurance that they could never be identified as sperm donors must now give second thoughts to the process. Because the “shelf-life” of donated sperm when frozen might be indefinite, so might be the donors’ exposure to support obligations. Imagine the donor’s bewilderment to wake up a couple of decades later to the knock of a sheriff serving papers!
— Ken Butera