Pa. Sperm Donor Wins Challenge To Court-Ordered Child Support

Pa. Sperm Donor Wins Challenge To Court-Ordered Child Support

HARRISBURG, Pa. -- A woman who promised a sperm donor
he would not have to pay child support cannot renege on the deal,
the Pennsylvania Supreme Court ruled.

The 3-2 decision overturns lower court rulings under which Joel
L. McKiernan had been paying up to $1,500 a month to support
twin boys born in August 1994 to Ivonne V. Ferguson, his former
girlfriend and co-worker.

"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," Justice Max Baer
wrote in the majority opinion issued last week

"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," Baer wrote.

Ferguson and McKiernan met while working together at
Pennsylvania Blue Shield in Harrisburg and had a sexual relationship
that had waned before Ferguson persuaded him to donate sperm for
her.

Courts found that the two agreed McKiernan would not have to
pay child support and would not have visitation rights, but Ferguson
later changed her mind and sued. Ferguson's lawyer has disputed
that the agreement existed in the first place, but courts have agreed
with McKiernan on that issue.

Between the time of the donation and when Ferguson sought
support in 1999, McKiernan moved to Pittsburgh, got married
and had a child.

A county judge called Ferguson's actions despicable but said it
was in the twins' best interests that McKiernan be required to
support them. In addition to monthly payments, McKiernan was
also ordered to come up with $66,000 in back support, although
he was not required to do so until the appeal was resolved.

McKiernan noted that the Uniform Parentage Act, a model law
adopted in some form by at least 19 states but not Pennsylvania,
did not require anonymity in order to protect the donor from
financial responsibility.

His lawyer, John W. Purcell Jr., said Wednesday an adverse
decision would have jeopardized the entire system of sperm
donation.

"That wouldn't just include Pennsylvania, because we found out
in the course of this trial that many doctors order their sperm for
their artificial inseminations out of state," he said.

Justice J. Michael Eakin, in a dissent, said a parent cannot bargain
away a child's right to support and argued that the viability of sperm
banks was not the issue.

"The children point and say, 'That is our father. He should support
us,"' Eakin wrote. "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."

Arthur Caplan, chairman of the Department of Medical Ethics at
the University of Pennsylvania, said the decision runs counter to
the pattern established by similar cases, where the interests of the
progeny have generally been given great weight.

"It sounds like the Pennsylvania court is trying to push a little harder
into the brave new world of sperm, egg and embryo donation as it's
evolving," Caplan said.

Despite the ruling, donors should still be cautious about informal
agreements that ostensibly insulate them against having to support
children they help conceive, Caplan said.

He called it an area ripe for legislative action.

"The principle of trying to spell out what a contract might be, what's
a legitimate contract ... is not one the state Legislature should ignore,"
he said. "They should think about this."

Elizabeth Hoffman, Ferguson's lawyer, did not immediately return
a phone message seeking comment left at her Harrisburg office on
Wednesday.


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