JONATHAN TURLEY

In the latest of a series of interesting cases involving sperm donors and surrogate mothers, the Pennsylvania Supreme Court has ruled that a sperm donor is not liable for child support. The decision in favor of Joel L. McKiernan reversed lower court decisions compelling him to pay child support despite a promise from Ivonne V. Ferguson, his former girlfriend and co-worker, that she would not ask for such support.

It was a close 3-2 decision that, unlike a recent case out of New York, ruled in favor of the contractual promise over the public policy in favor of requiring parents to bear the costs of support. Ferguson had twin boys in August 1994.

The case was highly disturbing given the factual findings in favor of McKiernan but the legal rulings in favor of Fergusan. Both Ferguson and McKiernan once worked at Pennsylvania Blue Shield in Harrisburg and developed an intimate relationship. After that relationship ended, however, Fergusan persuaded McKiernan to donate sperm for her on the express understanding that he would not be responsible for the child legally or financially. But after the children were born, however, Fergusan changed her mind and insisted that McKiernan support the children. By that time, McKiernan had moved to Pittsburgh, got married and had a child.

What is remarkable is that despite ruling that Fergusan had made these promises, the courts still ruled against McKiernan.
One state judge derided Fergusan as contemptible but still ruled in her favor.

The three-justice majority ruled that “This court takes very seriously the best interests of the children of this commonwealth, and we recognize that to rule in favor of (McKiernan) in this case denies a source of support to two children who did not ask to be born into this situation . . . . Absent the parties’ agreement, however, the twins would not have been born at all, or would have been born to a different and anonymous sperm donor, who neither party disputes would be safe from a support order,” The decision was written by Justice Max Baer.

The case presented a serious threat to sperm donors across the nation. It was not a persuasive concern for Justice J. Michael Eakin, who in dissent wrote that seemed to reject any special status for sperm donors: “The children point and say, ‘That is our father. He should support us . . . What are we to reply? ‘No! He made a contract to conceive you through a clinic, so your father need not support you.’ I find this unreasonable at best.”

The opposite result occurred in New York where a man was held for child support after he agreed to help a lesbian couple have a child and allowed his name to be put on the birth certificate. He was a physician where the mother worked as a resident. He was told that the woman (a lesbian) and her partner wanted a child, so he donated his sperm and the child was born on July 26, 1989. Nassau County Family Court Judge Ellen Greenberg barred the man on Nov. 16 from having a paternity test to confirm his status despite the fact that the mother did not object. Greenberg ruled that the results could have a “traumatic effect” upon the child. This was pretty bizarre since the “child” is now 18 and knows that his father is contesting support. For that story, click here

The two cases show the need for a single coherent rule on such cases. There is a great desire across the country for sperm donors, particularly from individuals who are known to the mothers. Such use of friends or associates is viewed as safer because of the ability to know the medical history and other salient facts. Courts however, as in New York, tend to allow the policy in favor of child support to trump even express contractual agreements. Eakin’s dissent disregards all countervailing considerations, including personal responsibility of Fergusan.

For the full story out of Pennsylvania, click here