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So much to write about, but for now I'll focus on the Pennsylvania Supreme Court's recent sperm donor opinion

By 4L

One of my friends pointed this article out to me and I thought it was an interesting piece. See Sperm Donor Wins Child Support Battle. Pennsylvania apparently splits their decisions up very oddly, but eventually I was able to find the case online. The majority opinion for Ferguson v. McKiernan is here. Dissent 1. Dissent 2. I haven't read anything about the case other than what MSNBC reported (although I just now did a quick read of the opinion for background).

The case basically deals with the question whether parties can privately contract, through an oral agreement, the ability to avoid parental responsibilities. Here, "Sperm Donor" and "Mother" used to be in a relationship and eventually Mother wanted Sperm Donor's kids. He wanted nothing more do with her, but eventually let her talk him into donating his sperm for an in vitro fertilization. The catch? He would have no responsibilities for the child whatsoever. In essence, as characterized by the court, he would have no rights as a father and would be treated as if he was an anonymous donor at a sperm bank. Mother agreed and eventually conceived twins with his sperm.

As time and anyone who has watched Lifetime or Fox over the past ten years would guess, Mother eventually wanted Father's financial support. As the majority characterized the question, "We must determine whether a would-be mother and a willing sperm donor can enter into an enforceable agreement under which the donor provides sperm in a clinical setting for IVF and relinquishes his right to visitation with the resultant child(ren) in return for the mother?s agreement not to seek child support from the donor." My (irrelevant) thoughts follow.

The rest of the majority opinion explains the Pennsylvania public policy and why it upheld the contract. One dissent argues that it is a legislative issue and his interpretation of the relevant statute cuts the other way. The other dissent articulates why the majority's position seems contradictory in light of Pennsylvania's "best interests of the child" standard.

I'll keep my comments general in case something I deal with over the next few months covers related family law issues. My gut reaction (had these facts been presented to me at first instance) is that it would probably be a legislative issue. Because most states focus on the best interests of the child, I would tend to think there is a distinction between Sperm Donor's and Mother's contract and if Mother tried to go after an anonymous sperm donor's child support had she went to a sperm bank. Of course, if I was fighting for father, I would ring the contract bell as loud as I could.

Although I certainly agree that oral contracts can be binding and indeed have the same effect as a written contract, I would be more inclined to side with Mother had they actually come to a written agreement. Of course, the oral representations are reserved for the trial courts and it seems they believed Sperm Donor. Nevertheless, I sort of remember reading a New Jersey case that dealt with bargaining away surrogate rights, but I can't remember the facts or even if they would be applicable. I disagree that the facts of this particular case are the same as anonymous sperm donation, and am a little surprised that this type of bargain (and the opinion) equated the two. I wonder if William Penn is rolling over in his grave.

As pure speculation, I also wonder if family law attorneys in Pennsylvania now have good faith argument for deadbeat fathers who submit that mother "fooled" them into thinking she wouldn't have kids, with a pillow talk such as "don't worry, even if I have a kid, you won't be responsible." Under the majority opinion, it seems to me, if a father can show some sort of consideration for this pillow promise, then he may not be financially responsible regardless of the best interests of the child. Somehow I figure that this interpretation of the opinion would be a losing one, esp. since I sort of remember reading that this case didn't change the laws of illegitimate children. Yeah.

Either way, Father wins this one 3-2, and his children are treated as if he was an anonymous sperm donor (even though I believe that really isn't the same situation). If Mother doesn't like the result, however, she can always win some cold comfort through the legislature. Or motion for reargument since two justices apparently didn't sit on this case. Anyone familiar with Pennsylvania family law, chime right in. Better yet, if you're one of the clerks on this case, how about a little insider trading?

Full post as published by The Once and Future Lawyer on January 08, 2008 (boomark / email).