Sperm Donor Not Required to Pay Child Support

Amaris Elliott-Engel

The Legal Intelligencer

In a case of first impression, the Pennsylvania Supreme Court ruled on Dec. 27 that a sperm donor who gave up his parental rights in an oral contract with the mother of twins can't be required to pay child support.

Justice Max Baer, writing for the majority, said that a contrary decision would undermine alternative means of reproduction in a modern age that allow women who are in established relationships or who are single -- but who can't conceive a child on their own -- to enter contracts with male sperm donors who are not required to support the progeny sired from their sperm donations and who lose their parental rights to the children.

Both the Superior Court and the Dauphin Common Pleas Court had ruled that the oral contract formed between the private sperm donor, Joel L. McKiernan, and Ivonne V. Ferguson, the mother of the children fertilized with McKiernan's sperm during in vitro fertilization, was unenforceable.

The courts concluded the contract -- in which McKiernan was relieved of providing support to the children Ferguson gave birth to and in which McKiernan gave up parental rights for visitation with the children -- was unenforceable under the commonwealth's public policy that children's rights to legal support from their parents can't be bargained away.

Ferguson's argument in Ferguson v. McKiernan unsuccessfully relied on the principle that the oral contract was unenforceable because it violated Pennsylvania's policy to disallow parents to barter their children's right to support, Baer said. Ferguson's argument also analogized unsuccessfully that this sperm donor situation was similar to the support responsibilities for children conceived before a divorce or between unmarried parents, Baer said.

"This analogy, however, is unsustainable in the face of the evolving role played by alternative reproductive technologies in contemporary American society," Baer said. "It derives no authority from apposite Pennsylvania law, and it violates the commonsense distinction between reproduction via sexual intercourse and the nonsexual clinical options for conception that are increasingly common in the modern reproductive environment. The inescapable reality is that all manner of arrangements involving the donation of sperm or eggs abound in contemporary society, many of them couched in contracts or agreements of varying degrees of formality."

The court agreed with McKiernan's argument that a decision in line with the lower courts would undermine the legal status of sperm donors, including anonymous donors at sperm banks, and would force women to seek sperm via sperm bank rather than from men in their acquaintanceship that they admire.

Chief Justice Ralph J. Cappy and Justice Ronald D. Castille joined Baer. Justices Thomas G. Saylor and J. Michael Eakin wrote separate dissents. Oral arguments were held in front of former Justices Russell Nigro and Sandra Schultz Newman, but neither participated in the decision.

The trial court ordered McKiernan to pay $1,384 per month retroactively to Jan. 1, 2001, with a corresponding arrear of $66,033.66, which was ordered due immediately, Baer said.

Eakin concluded that under Pennsylvania law Ferguson's children deserved financial support from McKiernan despite evolving forms of reproductive assistance and that the majority's decision otherwise usurped the role of the General Assembly.

"To deny these children their right to support from their father changes long-standing law -- if the Legislature wishes to disenfranchise children whose conception utilizes clinical procedures, it may pass such a law, but we should not," Eakin said. "The Legislature can best undertake consideration of all the policy and personal ramifications of 'evolving' notions and 'alternative reproductive technologies in contemporary American society.'"

Saylor argued in his dissent that §5102 of the Domestic Relations Code said every child, irrespective of the marriage status of their parents, has the same rights and privileges, including of support, from their parents. The public policy established in the statute is applicable to the Ferguson case because of the separate roles of the legislative and judicial branches, Saylor said.

McKiernan argued that the commonwealth's law and public policy that disallows parents from bargaining away their children's right to support did not control this case because the agreement was entered into prior to conception, according to Baer.

The high court majority agreed: "This court takes very seriously the best interests of the children of this commonwealth, and we recognize that to rule in favor of sperm donor in this case denied a source of support to two children who did not ask to be born into this situation. Absent the parties' agreement, however, the twins would not have been born at all, or would have been born to different and anonymous sperm donors, who neither party disputes would be safe from a support order."

Elizabeth Hoffman, a Harrisburg solo practitioner representing Ferguson, argued that the contract was not valid to begin with and the case was a narrow one separate from the circumstances of conceptions undertaken with sperm from a sperm bank. The record of the case shows that McKiernan didn't want to take responsibility for the children, rather than that the contract stated McKiernan was giving up his parental rights, she said in an interview.

Hoffman has filed an application for reargument in the case.

She said she believes the majority stretched the definition of an anonymous sperm donor in its decision. While McKiernan was not allowed to argue that he had the constitutional right to be treated equally with anonymous donors, the court "got it in the back door by agreeing he was to be treated" equally, Hoffman said.

"I understand the court wants to have law to protect the right of mothers and fathers where reproductive technology is concerned. I think that's a good idea," Hoffman said. "The facts in this case just do not support a conclusion this had been a lawful, enforceable agreement."

The trial court found that McKiernan came across as more sympathetic and more credible than Ferguson, Baer said.

John W. Purcell Jr. of Purcell Krug & Haller in Harrisburg and the attorney for McKiernan, said the majority's opinion matched the arguments he made and that Eakin's dissent reflected an emotional response to Ferguson's situation, rather than reflecting the reality that a valid contract was entered into before the twins were conceived.

He said he believes the court's decision prevented a revolution in the sperm donation system in Pennsylvania.

"There are women and couples who need to get sperm," Purcell said. "That will continue as it always has. ... If I had lost, we would have a radically different sperm dissemination system, not just in Pennsylvania but throughout the country."

McKiernan and Ferguson were romantically involved between November 1991 and 1993, and they stayed in regular contact following the end of their sexual relationship, Baer said.

At Ferguson's request, McKiernan agreed to donate his sperm to Ferguson with the contingencies that it would be done via in vitro fertilization in a clinical setting, McKiernan's role would be anonymous, he would not have to provide support and he would not seek visitation, Baer said.

McKiernan did attend the birth of the twins, Baer said, because Ferguson called him in a panic and had no one else to turn to during the birth. Ferguson named her husband as the father on the birth certificates of the twins, according to court papers.

Their contact dissipated after McKiernan moved to Pittsburgh, married another woman and had two children with her.

Ferguson rediscovered McKiernan because they both worked in the same field, and she was advised by the state to seek child support from McKiernan when she was denied state help for day care for her children, according to Baer's opinion and Hoffman.

The court majority concluded there was no question that the support rights of children conceived through intercourse can't be bartered away in a contract, and there is a "growing consensus" that a sperm donation to a sperm bank "neither imposes obligations nor confers privileges upon the donors," Baer said.

In the instant case, a ruling in favor of Ferguson can't be made because Ferguson and McKiernan negotiated an agreement akin to a conventional sperm donation, Baer said.

Eakin, however, argued that McKiernan did not have the same protections as anonymous sperm donors and that McKiernan had the responsibility to support the children conceived with his sperm -- "the only difference between this case and any other conception is the intervention of hardware between one identifiable would-be parent and the other."

The majority said that under Eakin's reasoning sperm bank donors would be legally responsible to support all the children conceived from their sperm.