Thanks to Jocelyn Bowie for pointing me to a very interesting recent opinion in the case of Ferguson v. McKiernan, --- A.2d ---, 2007 WL 4555436, Pa., December 27, 2007:
A man (McKiernan) agrees to provide sperm to an unmarried woman (Ferguson) who wishes to become a single parent but wants to use the sperm of someone she knows rather than an anonymous donor. The man agrees not to seek custody or visitation of the child, and the woman agrees not to seek child support. The woman’s eggs are then fertilized in vitro with the man’s sperm, and resulting embryos are implanted in the woman’s womb for gestation. Five years after giving birth to twins, the woman demands child support payments from the man. The trial court ruled that the contract is unenforceable because parents normally are not permitted to waive child support requirements. The Pennsylvania Supreme Court, fearing that no man in his right mind would ever be sperm donor if that ruling is upheld, reversed and freed the man of monthly support obligations.
The case illustrates several conceptual difficulties inherent in defining parentage and determining child support obligations. The majority of the Pennsylvania Supreme Court observes that if the “known” sperm donor is held responsible for caring for his “children,” there is no reason why the logic wouldn’t require the same of anonymous sperm bank donors. They, too, are genetic parents of the children. But if the line on one side — between donating friends and anonymous sperm bank donors — is difficult to defend, so too is the line on the other side. If the sperm donor friend need not support the offspring on the ground that he had no intention of becoming a “social” parent and genetic parentage should not be sufficient, shouldn’t the same rule apply to a man who impregnates a woman through sexual intercourse after the two agree that the man will have no support obligations for any offspring? In this case also, both genetic parents understand and agree that the man is only providing genetic material and is not agreeing to become a social parent. If the man should not be responsible in this case, the next question is why he should be responsible when the pregnancy is accidental rather than intended and the man wants the woman to obtain an abortion but the woman declines to do so? The woman’s right to control her own body guarantees her the right to unilaterally decide whether or not to terminate the pregnancy, but why should she be able to impose child support obligations on the genetic father who clearly wishes to avoid “social” parentage?
The usual response to all of these questions is that the woman has no right to waive child support because this right belongs not to her but to the child. But this response just begs the question of what relationship is necessary to establish such an entitlement. If genetic parentage is sufficient, then children should have a right to child support from even an anonymous sperm donor.
Many states (although apparently not Pennsylvania) have established by statute that anonymous sperm donors have no parental obligations, but the existence of such laws doesn’t justify them. One possible defense of treating anonymous sperm donors differently is that states with such statutes abrogate the rights that genetic children fathered by anonymous sperm donors would otherwise have against their genetic fathers because such laws encourage sperm donation, which in turn makes it possible for the genetic children to be born, and being born but having no paternal financial support is better than never being born at all. But this logic, carried to its extreme, would suggest children would have no right to parental support in any case.
Perhaps another way to think about the problem posed by the case is that the woman cannot contract away the children’s right to the support of their genetic father, but there is no reason why she should not be able to indemnify the man from any such claims. Her promise not to seek child support can be interpreted as such an indemnification. This reasoning seems sound from the perspective of contract doctrine — the woman can commit herself to a contract but not the third-party children — but it raises obvious practical problems when the man earns sufficiently more than the woman (as was true in Ferguson) such that his court-imposed child support obligation exceeds what she could pay in damages. Following this path of reasoning often would result in the resort to bankruptcy law to determine how much of the amount the man owes to his genetic children he can recapture from their mother.