Case Could Freeze Sperm Donation

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The
Pennsylvania Supreme Court is currently considering a legal
appeal
that could set wide-reaching precedent for both child
support policy and fertility clinics in the United States. As one
report
states, "sperm donors who thought they were getting
$50 for their genetic material" – a standard clinic fee –
and nothing more may be in for a real shock.

The
case involves sperm donor Joel L. McKiernan and his lover Ivonne
V. Ferguson. Ten years ago, they entered a verbal contract that
a three-judge panel of the Superior Court said was valid "on
its face." In exchange for McKiernan donating sperm that led
to the birth of twins through in-vitro fertilization, Ferguson released
him from any obligation toward offspring. (IVF involves fertilizing
a woman’s eggs with sperm in a lab dish and, then, placing
the fertilized eggs back in the aspiring mother’s uterus.)

Ferguson
denies that an agreement to release McKiernan from responsibility
ever existed. Nevertheless, she named her then-husband as ‘father’
on the birth certificate. Five years after the twins’ birth and
in the wake of divorce, she filed against McKiernan for child support.

The
tangled personal circumstances of this situation constitute a legal
nightmare and the sort of ‘hard’ case that makes bad law. And bad
law is exactly what may result.

Both
the trial court and the Superior Court called
Ferguson’s actions "despicable" and expressed sympathy
toward McKiernan. Yet both found him liable to pay over $1500 a
month in child support plus arrearages to the now-divorced Ferguson.
(McKiernan has married, moved, and now has two other children he
is raising.)

Why
was McKiernan considered liable? The original contract was deemed
unenforceable due to "legal, equitable and moral principles."
The main abrogating principle: biological parents cannot waive the
interests of a child – a third party – who has an independent
‘right’ to support from each one of them.

It
does not matter that a third party did not exist when the contract
was forged and probably would have never existed without the contract.
Nor does it matter that the law generally presumes a husband to
be the father of any child born during the marriage. The donation
of sperm alone makes McKiernan financially liable for the twins
until they reach adulthood.

Or
it will if he loses the Supreme Court appeal, which weighs the extent
of a sperm donor’s liability. Presumably, the ruling would equally
impact women who donate eggs for another’s fertility treatment.

Pennsylvania,
like most states, has not adopted a version of the Uniform
Parentage Act
, which protects sperm or egg donors from the responsibilities
of parenthood. Many – if not most – donors merely presume that
anonymity provides such protection.

In
the case of Ferguson v. McKiernan, the identity of the sperm donor
was always known. But the principle sustained by the courts could
apply with equal force to anonymous donors.

Ferguson’s
attorney argued that her case did not threaten sperm banks or fertility
clinics because such facilities had not been involved. McKiernan’s
attorney noted that the contract in question was virtually identical
to the ones they offer: namely, anonymity or non-involvement in
exchange for a donation. If a mother or father cannot waive the
‘right’ of a potential child to support, then it is not clear how
a fertility clinic could do so in its capacity as a broker-for-profit
between the two ‘parents’.

The
danger this precedent would pose was expressed
by Arthur Caplan, a professor and medical ethicist at the University
of Pennsylvania. Caplan explained that anyone who donates genetic
material on the basis of anonymity "ought to understand that
their identity could be made known to any child that’s produced
and they could be seen by the courts as the best place to go to
make sure the child has adequate financial support." The prospect
becomes more likely if one parent is requesting support from a government
agency.

Sperm
banks are legally required to maintain a record of each donor’s
identity, often indefinitely.

Pennsylvania
Supreme Court judge Ronald D. Castille was more
blunt
than Caplan in his assessment of the risk that donations
would cease. "What man in their right mind would agree to that
[sperm donation] if we decide this case in your favor? Nobody."
What woman in her right mind would donate eggs?

Estimates
on infertility in the United States vary but the rate is often placed
at about
15 percent
, even without including gay and lesbian couples.
That is, 15 percent of couples fail to conceive after one year of
regular, unprotected intercourse. If miscarriages are factored in,
the rate increases.

The
use of donated sperm and eggs is a common solution to infertility.
According to Dr. Cappy Rothman of the California Cryobank,
an estimated 150,000 to 200,000 artificial inseminations occur every
year in the U.S. And that is only one form of infertility treatment.

If
the Pennsylvania Supreme Court finds the sperm-donor to be liable
for child support, then many forms of infertility treatment in most
states could become less available and more expensive. Those donors
who step forward will want to be compensated for their increased
legal risk.

The
courts have pitted a child’s "best interests" against
the rights of biological parents to contract with each other on
the terms of reproduction. They may have also opened a Pandora’s
box of complications involving a child’s claim on a sperm donor’s
data and wealth.

But
the worst consequence may be the denial of life itself to children
who are desperately wanted by infertile couples. The law should
not obstruct their chances of conceiving.

May
26, 2005

Wendy
McElroy [send her mail]
is the editor of ifeminists.com
and a research fellow for The
Independent Institute
in Oakland, Calif. She is the author and
editor of many books and articles, including the new book, Liberty
for Women: Freedom and Feminism in the 21st Century

(Ivan R. Dee/Independent Institute, 2002).

Wendy
McElroy Archives

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