Case Could Freeze Sperm Donations
The Pennsylvania Supreme Court is currently
considering a 22.214.171.124/search?q=cache:kxEQudj5GIJ:www.courts.state.pa.us/OpPosting/Superior/out/a15043_04.pdf+McKiernan+Ivonne+Ferguson&hl=en&lr=lang_en
legal appeal that could set wide-reaching precedent
for both child support policy and fertility clinics
in the United States. As one report www.post-gazette.com/pg/05140/507736.stm
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
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
Pennsylvania, like most states, has not adopted
a version of the www.aaml.org/Articles/2000-11/UPA%20FINAL%20TEXT%20WITH%20COMMENTS%20.htm
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 become 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
Pennsylvania Supreme Court judge Ronald D.
Castille was www.observer-reporter.com/296057286820119.bsp
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
Estimates on infertility in the United States
vary but the rate is www.fertilitysolution.com/chapter1.html
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
The use of donated sperm and eggs is a common
solution to infertility. According to Dr. Cappy
Rothman of the California www.cryobank.com
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
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.
* * *
McElroy 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 her latest book,
Liberty for Women: Freedom and Feminism in the
21st Century. She lives with her husband in
Also, see her daily blog at www.zetetics.com/mac
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