Posted on 08/23/2005 4:33:44 AM PDT by grundle
http://www.canadiancrc.com/articles/Patriot_News_Sperm_donor_loses_appeal_child_support_23JUL04.htm
Sperm donor loses appeal on child support
The Patriot News, Friday, July 23, 2004, BY REGGIE SHEFFIELD of The Patriot-News, Harrisburg, PA, U.S.A.
The state Superior Court yesterday ruled that a man must pay child support to a woman who conceived twin boys with his sperm through in vitro fertilization.
The opinion upholds a Dauphin County Court order filed in 2002.
Joel L. McKiernan now must pay up to $1,500 each month, but he argued that an oral agreement he had with Ivonne V. Ferguson protected him from any payments, according to court papers.
When McKiernan agreed to be a sperm donor for Ferguson -- a co-worker with whom he had had an affair between 1991 and 1993 -- she promised she would never seek support payments from him, court documents said. But in 1999, she began seeking support.
Superior Court Judge Patrick R. Tamilia wrote that the oral contract between McKiernan and Ferguson is essentially worthless, because the rights for child support belong to the twins, not to either parent.
"The oral agreement between the parties that [McKiernan] would donate his sperm in exchange for being released from any obligation for any child conceived, on its face, constitutes a valid contract," Tamilia wrote in a six-page decision.
"Based on legal, equitable and moral principles, however, it is not enforceable," Tamilia wrote.
Efforts to reach Ferguson and McKiernan were unsuccessful.
According to the court papers, Ferguson persuaded McKiernan to donate his sperm for in vitro fertilization in 1993, when their relationship waned. Ferguson was married, but her husband filed for divorce on the day she underwent the IVF procedure, court papers said.
On Aug. 25, 1994, Ferguson gave birth to the twins. She listed her ex-husband, not McKiernan, as the biological father on the birth certificate, according to court papers.
McKiernan had little contact with Ferguson during this time, other than visiting her in the hospital when she was in labor and spending an afternoon with her and the boys two years later, court documents said.
Elizabeth Stone, a family law attorney, said that Pennsylvania law very clearly holds that the right to child support belongs to the children and not the parents.
"Even though the child is a minor, he cannot in any way extend that right to the parent," Stone said. "So even a contract can be immediately invalidated by running to the court and filing for support."
With in vitro fertilization, a sperm cell and egg cell are combined outside the woman's body, and the resulting embryo is placed in her uterus. About 1 million children have been conceived through in vitro fertilization, which was first done in 1978.
The issue of child support and in vitro fertilization has found its way into court in other jurisdictions.
REGGIE SHEFFIELD
Copyright 2004 The Patriot-News
The donor (sperm or egg) always has a potential responsibility. People should make "donations" with that in mind.
"I was merely pointing out that the parents in this case did have a long-term relationship, so there is some connection between the father and the baby, even if it is only through the mother. "
The only difference I can see between anonymous sperm donation and IVF is a general difference in the approach to conception. In either case the only connection between the father and the baby is the mother.
I think you mean to imply that because the mother and father had a tryst, there is some sort of implied contract that nullifies anything you might have explicitly put into place before the IVF.
What would actually be required here, if things would have worked out correctly is that the husband would have been in on the process and OK'd the donation. After the birth the husband would have been required to adopt the child formally to relieve the donor of the support resposibility. Had he stayed in the marriage, he would have been a de facto guardian ad litem - something he avoided in the divorce.
It's not stated here, but she must have kept this from her husband somehow.
How about the man who received oral gratification from his girlfriend, who subsequently saved his sperm, froze it, and inseminated herself (all true, according to press reports). The courts held him liable due to his unconditional "gift" deposited in her mouth.
I don't think I agree with your position, but cannot as yet articulate why. I need to think it through before I can decide.
I also thought this singular case was an interesting point in the whole topic.
I did, but what does that have to do with anything? My point is, if the agreement was a verbal one, there are only two people privy to what that agreement was exactly. And now one of them is trying to re-neg. How do we know which one?
Based on this ruling, no lesbian or homosexual will be able to do any sort of IVF or surrogacy because support rights fall to the children, and so no matter what kind of agreement the adults come to the donor (male or female) is still liable for support and open to litigation.
Then what seems to be the problem?
In my opinion, however, your conclusion is not completely valid -- homosexuals would still be able to get IVF, as long as the "donor" understands the circumstances -- and there will be those who do, and will still be willing to bear the risk. (One possibility is that gay males might contribute to female couples, and vice versa.) But maybe on the whole, such decisions will make a dent in the trafficking of sperm and eggs.
Simple solution: Don't have babies out of wedlock.
The only reason for state sponsored marriage is to make obligations legal.
Have babies out of wedlock, and don't come crying to the state to chase down your man (or men) for you.
For if the state is expected to enforce fatherhood whether or not the father married the woman, then what's the point of legal marriage? NONE.
Chase the fornicator's men for child support, and you undermine marriage.
Undermine marriage, and you undermine society and the health, safety, and future of all children.
Of course, the state is chasing unmarried men for child support, and so women are more likely to have children out of wedlock.
I say the state should put an end to this fiction of marriage, since it is no longer needed.
Everybody do what you want, and if there are consequences, the state will help you no matter.
My point is there will be more child victims if you undermine the need for legal marriage.
You can be emotional over this, or you can see the larger picture and go with the greater good--although the greater good is not as obvious.
Not nobody. I would.
Prior to 1972, the only way to become liable for child support was to a) Be married to the child's mother at the time of conception, or b) Agree to pay.
Gomez v. Perez, 409 US 535 (1973) overturned millenia of common law to impose child support obligations on unmarried men. This was unwise then, and remians unwise now.
I hope you don't mind if I don't "touch" that one until I give it some thought, but offhand I'd say he's less culpable than a guy who knows his sperm is going to be used to make a baby.
I think that, in terms of responsibility, men who father a child should also plan to be the Daddy of that child. If they don't intend to be the daddy then they shouldn't be the father. This goes for guys who knock up their dates, men in stable marriages, and yes sperm donors. No matter how many tubes and doctors and freezers and petri dishes and turkey basters you put between the man and the woman, the man still at some point knowingly entered into procreational activity.
I don't think a mother can waive a man's paternal responsibilities -- she can try to, but I think very few parents can foresee what being a parent will entail. You can wirte on a piece of paper that "The child won't need his father," but time and circumstances just aren't that predictable, whereas the need for a child to have a strong father-figure is pretty much 100% reliable.
Finally, part of creating the next generation is passing on social values to them, or one's culture. If you reproduce the culture through baby-factories in which the man and woman never meet, you are that much closer to writing the man out of the culture entirely. What the hell's he good for in terms of the culture? He's obviously not wise enough to pass on values to kids. He has practically ceded his own place in the culture to that of cattle and cannon fodder.
LOL... which press... the Enquirer?
In all seriousness, I think the real lesson here is that all of us parents have to teach our children that sexual activity (of ANY kind) can have very serious consequences -- for both males and females. That may be one good argument for saving it for marriage, but regardless, it is not something to be engaged in lightly, without careful forethought and consideration.
Obviously, neither is sperm/egg donation, even if it is without the umm... recreational benefits.
Of course it should be her fault: she spread her legs before getting him to sign the contract.
And so she is a fool, and society should not come to her rescue.
If some private charity wants to operate a home for unwed mothers, let them.
Go to law school. Seriously, it has NEVER been legal for a mother to waive support. Such clauses are unenforceable.
That is family law 101.
I did not sleep at a holiday inn, but I did go to law school.
HE DID NOT CREATE ANYTHING NEW.
I glad you are done because the information you are conveying is incorrect.
No man should EVER beleive a waiver of support even in writing. The only way to end support is to have a termination of parental rights and then it is ONLY upon evidentiary hearing and a court order.
PERIOD.
Even it it was "on paper" it would still be unenforceable.
Assume for the moment that the woman went on welfare, the state support division would simply go to court to recover the welfare costs regardless because support belongs to the child NOT the mother.
Either that or stop undermining the reasons for state sponsored marriage in the first place: cementing the obligations of the man to a helpless woman and children.
Which means end equal rights for women, and the social expectations thereof.
And enforce child support only for fathers who are married to the mother.
Or abolish marriage, as it otherwise has become a romantic fiction, and government should not legalize sentimentality.
That's the way I see it... and apparently, that's the way the judge saw it. Did anyone ask the kids whether they were willing to waive their parents responsibilities? No? Then both parents are responsible.
In my opinion, only rights can be waived. Responsibilities can't be waived, especially by someone who has no right whatsoever to waive them.
People make decisions, and those decisions have consequences. Those who make the decisions should pay the price. Those who are not willing to face the consequences, should keep their sperm and eggs to themselves. THAT is the big picture, the way I see it, and THAT is for the greater good.
I don't see how this undermines the need for legal marriage. Quite the opposite -- it discourages anyone from any acitivity which may lead to creating a child with someone he/she isn't legally married to.
Prior to 1973, there was no support obligation separate from marriage. See Gomez v. Perez, 409 US 535 (1973).
Thirty-two years of flawed law does not equal "forever". The common law and the law of all fifty states prior to 1973 imposed the obligation of support on unmarried mothers exclusively.
If you learned otherwise in "Family Law 101", you should get your money back.
Good God, are you serious, or am I missing some subtle sarcasm on your part?!
Because your arguments are way too easy to overturn. How about this: "Of course it should be HIS fault: HE ejaculated before getting HER to sign a contract!"
Unless one of them raped the other (and it's kind of hard to rape a man... ) they made a decision together. We don't know what that decision was exactly, because their agreement was verbal, so only the two of them know. And now, they are no longer in agreement. Therefore, they are BOTH responsible.
I don't see what part of that is so hard to understand. Where's that blind poodle? Maybe he can explain it better than I can.
Frankly it is an effort of a judge to create the same obligation of a father in marriage to support the child. Essentially treating the mother and father the same as a the net result of a couple which is divorcing.
Perhaps we should simply outlaw all anonymous sperm donations. The only way to use an IVF clinic would be to go through the process of terminating parental rights and simultaneously having the man who is going to raise the child as the father adopt the child.
Essentially sperm donors become court concluded as abandoning the child.
Of course this makes, it difficult for homosexuals (male and female) to do this in the majority of states which do not allow same sex second parent adoption.
It also makes it virtually impossible for those intentional single career woman mothers to use IVF services without the POTENTIAL demand of visitation of a sperm doner at some point.
That is not a waiver. Big difference.
Knowledge works just fine, thank you very much. ;-)
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