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Men will be reluctant to donate their sperm to sperm banks if the state Supreme Court upholds an order directing one donor to pay child support for twins his sperm went to create, the donor’s attorney told the high court yesterday. The case of Ferguson v. McKiernan – one of six argued orally before the justices in Harrisburg yesterday – pits the welfare of the children against the contractual rights of the donor father, who says the mother agreed – prior to conception – that he would not have any rights to the children, nor would he be obligated to support them financially. A lower court found valid but unenforceable the oral contract between the donor and the mother, saying that Pennsylvania case law doesn’t permit parents to bargain away the support rights of children. But John W. Purcell Jr. contends his client’s situation is no different than the agreements between mothers and anonymous donors to sperm banks. Purcell said the lower court’s ruling will have a chilling effect on men who would otherwise be sperm donors but for the potential that they could be liable for child support some day. Purcell’s opponent, attorney Elizabeth Hoffman, pointed out that her client didn’t go to a sperm bank but to Joel McKiernan. At a sperm bank, McKiernan would have waived his legal rights as a parent. McKiernan never did, she said. “There was no legal proceeding in which he terminated parental rights,” Hoffman told the court. Under questioning from Chief Justice Ralph J. Cappy, Purcell conceded that the lower court never specifically found that McKiernan had waived his parental rights. Purcell said it was implied by the lower court in its findings. The mother, Ivonne V. Ferguson, disputed the contention that there was ever an agreement between her and McKiernan that he wouldn’t have parental rights or duties. Notwithstanding Ferguson’s claim, the Dauphin County trial court found there was indeed an agreement and that it was valid. Dauphin County Judge Scott A. Evans wrote in his opinion that while a sperm donor “should be protected from liability to the donee, regardless of whether his identity is actually known to the donee,” the court in this case “cannot ignore and callously disregard the interests of the unheard-from third party; a party who without their privity to this contract renders it void.” Justice Russell M. Nigro seemed concerned that the twins’ best interests were not being considered. Whatever the agreement was, Nigro said to Purcell, “the twins had nothing to do with that. They didn’t ask to be brought into this world.” “Nor did any other child created by in-vitro fertilization,” Purcell said. “But you understand, we’re here to protect the children,” Nigro said. “If you’re going to do that, your honor, then you have to apply that rule to all sperm donors,” Purcell said. Such a result, he said, would cause “sperm banks in the state to dry up.” Purcell urged the justices to adopt the policy enunciated in the Uniform Parentage Act, which some states have enacted and which says sperm donors are not to be considered fathers to children created by assisted means of reproduction. Hoffman countered that the justices’ taking such a position would mean they were “stepping into the shoes of the Legislature.” Justice Max Baer asked Hoffman what made McKiernan responsible for child support while other sperm donors are not. “I would go back to my public policy argument – the children suffer,” Hoffman replied. “But so do all other children of sperm donors then,” Baer countered. After a pause, Hoffman said, “There was no surrender of parental rights. The children lost the right to stability.” Justice Ronald Castille hypothesized a situation in which two lesbians looking to have a child approached a man – say Chief Justice Ralph J. Cappy, Castille supposed. They ask him to contribute sperm. “What man would agree to that if we decided this case in your favor,” Castille asked Hoffman. Hoffman said she had represented a couple in a similar situation. The man the lesbians approached in that case agreed to help them because one partner was going to adopt the child and take over the legal parental responsibilities to help the mother. Hoffman insisted Ferguson’s case was unique and that a ruling in her favor would not discourage donors from contributing to sperm banks.

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