Family Law: January 2008 Archives

  Ms. Ferguson and Mr. McKiernan made a deal. He would donate his sperm and would never seek visitation; she agreed his donation would remain anonymous and to never seek parental support. It had all the hallmarks of an anonymous sperm donation except it was a private deal and the parties had previously had a romantic relationship.

            Ms. Ferguson soon gave birth to twins. She married and, for five years, honored the deal with Mr. McKiernan. Her bond was hardly her word, however, and she brought suit against the father of her twins for child support. The trial judge expressed his dismay at her dishonest behavior but, because the deal was not binding on the twins, found the agreement was unenforceable and contrary to public policy. The Superior Court affirmed.

            The Pennsylvania Supreme Court would have none of it, or at least 3 of the 5 Justices who participated. The Court acknowledged the Pennsylvania statute that seemed to control the outcome against the father and for the benefit of the children. It acknowledged the case law that seemed to affirm that parents can not contract away a child’s benefit. Instead, the Court worried that a wrong ruling would keep truly anonymous sperm donors from making deposits in the Commonwealth, failing to see a difference between two exlovers  who privately agree to ignore the paternal obligations of the father and the transactions at a public sperm bank.

            Justice Eakin in dissent had it right. “Do these children,” he asked, unlike any other, lack the fundamental ability to look to both parents for support? . . .Is the means by which these parents contracted to accomplish conception enough to overcome that right. I think not.” Neither do I.

Alan Milstein