As an increasing number of states legalize same-sex marriage, there is an increase in same-sex couples considering the various methods for having children, including adoption, gestational carriers, egg and sperm donors.
For those couples, the singular goal when they are trying to have a child is to find a way to fill in the biological gap that exists by virtue of both parents being of the same gender. When a same-sex couple seeks out a sperm donor, egg donor or gestational carrier, they are looking to fill the missing biological piece of their parenting puzzle and generally are not looking for a third parent for the child.
Such couples often have the donor sign a contract in which he or she relinquishes any right that he or she may have to the future child and in which the couple relinquishes the right to seek financial support from the donor. Whether such contracts can prevent the donor from enforcing rights embedded in the public policy of their home state (or Pennsylvania), or whether such contracts can prevent the non-donor parent from seeking child support from the donor, may be beyond what any such contract can provide.
Pennsylvania case law and Pennsylvania public policy provide that “a parent cannot bind a child or bargain away that child’s right to support,” as the court held in Nicholson v. Combs, 550 Pa. 23, 33-35, 703 A.2d 407, 412 (1997). This concept is based on the theory that the purpose of child support is to provide for the needs of the child based upon the parents’ incomes and that parents should not be able to deprive their children of what they are entitled to receive. Where the role of one of the “parents” was only to provide a biological contribution to the creation of the child, the question becomes whether that parent can be obligated to financially support the child with whom he or she may not have had any relationship or where he or she was contractually released of any financial obligation.
In the 2000 Pennsylvania Superior Court case of Kessler v. Weniger, 2000 Pa. Super. 2, 744 A.2d 794 (2000), the mother sought support from the biological father who asserted that he had agreed to help the mother conceive on condition that he would not be responsible for the financial support of the child. The court’s focus was not on whether the agreement existed, but rather whether such an agreement could lawfully release the biological father from his support obligation.
In the 2012 case of Reber v. Reiss, 2012 Pa. Super. 86, 42 A.3d 1131 (2012), the Superior Court affirmed the trial court’s decision to award frozen embryos to the wife in equitable distribution as she was unable to otherwise procreate and, although the court did not confront the child-support issues directly, the court noted that the trial court considered the wife’s vow not to seek child support from her soon-to-be-ex-husband in its overall balancing test in deciding whether to award the embryos to the wife.
The biological father in Kessler acknowledged the general proposition that parents cannot bargain away a child’s right to support, but he attempted to draw a distinction based on the fact that he and the biological mother entered into their agreement prior to the child’s conception. The court found that that distinction did not relieve the biological father of his obligation and that, as he and the mother had engaged in sexual intercourse to conceive the child, he and the biological mother were no different from other parents, rather than being comparable to a mother and sperm donor who utilized a clinical setting to conceive the child.
In the 2007 case of Ferguson v. McKiernan, 596 Pa. 78, 940 A.2d 1236 (2007), the Pennsylvania Supreme Court wrestled with the distinction between an anonymous sperm donor providing sperm in a clinical setting, and a child borne out of a sexual relationship, as well as the distinction between an anonymous sperm donor and a known sperm donor. The court noted the increasing number of parents who are unable to conceive a child naturally, who turn to third parties purely as a result of biological need. The Supreme Court found the fact that a parent might not be able to obtain child support from an anonymous sperm donor should not deter a future parent from using sperm from a party with whom she is familiar and with whom she would have greater comfort merely because of the possibility that the contract between she and the donor might be unenforceable. Specifically, the court in Ferguson stated:
“Even if, arguendo, such a distinction were tenable, it would mean that a woman who wishes to have a baby but is unable to conceive through intercourse could not seek sperm from a man she knows and admires, while assuring him that he will never be subject to a support order and being herself assured that he will never be able to seek custody of the child. Accordingly, to protect herself and the sperm donor, the would-be mother would have no choice but to resort to anonymous donation or abandon her desire to be a biological mother, notwithstanding her considered personal preference to conceive using the sperm of someone familiar, whose background, traits and medical history are not shrouded in mystery. To much the same end, where a would-be donor cannot trust that he is safe from a future support action, he will be considerably less likely to provide his sperm to a friend or acquaintance who asks, significantly limiting would-be mother’s reproductive prerogatives.”
The court then likened the arrangement between the mother, who conceived the child through in vitro fertilization, and the sperm donor, to “a single-parent arrangement effectuated through the use of donor sperm secured from a sperm bank,” and found that the agreement was enforceable and the sperm donor father did not have a child-support obligation.
The distinction, therefore, rests with whether the relationship between the donor and the parent could be classified as “clinical,” comparable to an anonymous donor, where the “conception” takes place in a medical facility, rather than a bedroom, but for the fact that the parties know each other. That distinction has been codified in the 1973 Uniform Parentage Act, adopted in full in 19 states, including California, but not Pennsylvania, and in part in other states. Section 702 of the act provides that a “donor is not a parent of a child conceived by means of assisted reproduction” and the comment to that section notes that “the donor can neither sue to establish parental rights, nor be sued and required to support the resulting child. In sum, donors are eliminated from the parental equation.”
Language similar to the Uniform Parentage Act has been cited in a recent Kansas child-support case that has gained national attention. William Marotta donated sperm to a same-sex couple in response to an advertisement placed by the couple on craigslist.com. Marotta and the couple signed a contract indicating that Marotta would not assume parental obligations. The couple, now separated and facing financial difficulties, have sued Marotta for child support for the 4-year-old child and Kansas is taking legal action on behalf of the couple. Kansas law provides that the presumption of paternity, and attendant obligations, is not applicable if the man is “the donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor’s wife,” per Kan. Stat. Ann. §23-2208(a)(5). The couple argued that as the sperm insemination was not performed by a licensed physician, the contract is void. Marotta is arguing that the statute is antiquated. On Jan. 22, the U.S. District Court for the District of Kansas ruled that the sperm donor must pay child support due to the parties’ failure to utilize a licensed physician for the insemination.
The ever-changing technological landscape of procreation together with the increased number of same-sex couples entering into formal marriages is likely to result in an increased use of alternative methods for conceiving children. As statutes applicable to heterosexual couples are applied to couples who have utilized third parties to procreate, it is essential to understand the rights and obligations each party might have and how to waive such rights (if possible). The statutes in certain states may provide specific guidance in future years, but until then, the best approach may be to ensure, on paper and otherwise, that any party involved in conceiving a child who is not intended to be a parent to that child is treated as if he or she is an anonymous donor.
Scott J.G. Finger is an associate in the domestic relations firm Hofstein Weiner & Meyer.