POPULARITY OF ASSISTED PREGNANCY SPURS “BRAVE NEW WORLD” OF LAW

USA (SANEPR.com) May 20, 2008 -- Can a sperm donor be held liable for child support in Pennsylvania? Even if the mother has signed an agreement not to hold the donor financially responsible and the donor has agreed not to exercise any parental rights?
A majority of the state’s Supreme Court has issued a resounding “no” in a court decision that overturned a lower-court ruling, says Dorothy K. Phillips, a family law attorney who explained the new ruling in a recent Pennsylvania Law Weekly article.
#Calling the decision a “giant step” forward in case law concerning assisted reproductive technologies (ART), Phillips says the state’s highest court recognized in Ferguson v. McKiernan the limitations of rights and responsibility that can be enforced through valid agreements concerning ART. In this particular case, the court held that an agreement made between a woman and a willing sperm donor, where the donor provided sperm in a clinical setting for in vitro fertilization (IVF) and relinquished parental rights and the mother agreed not to seek child support, was enforceable.
Phillips compares the contemporary issues facing courts with those spurred by the then-science fiction “human egg hatcheries” featured in Aldous Huxley’s 1932 novel, “Brave New World.”
“Today we truly are living in a brave new world, where alternative reproductive technologies such as artificial insemination, in vitro fertilization and surrogate pregnancies are on the rise,” notes Phillips, who specializes in divorce, custody, paternity, child support, alimony, adoption and pre-nuptial and post-nuptial agreements. “Just a few decades ago, no one could have predicted that these technologies would become reality, but now that they are, we as a society have to approach the issues which arise with fairness and common sense.”
#The recent ruling reversed prior findings by the trial court and the state Superior Court that the agreement was unenforceable based on prior case law preventing parents from bargaining away a child’s right to support – something that is a matter of public policy in Pennsylvania.
“In this case, the donor agreed to provide his sperm in a clinical setting as if he were an anonymous donor and not seek out any kind of parental rights, and the mother agreed not to pursue any financial help with the IVF procedure or child support for the twins she ended up having,” says Phillips, a Villanova University School of Law graduate and frequent author and lecturer with offices in Philadelphia, Montgomery County, and Haddonfield, N.J. “It was only after five years of abiding by those terms that the mother sued for child support.”
In issuing its ruling, the Pennsylvania Supreme Court cited a proposed uniform law adopted by at least 19 states in which a donor is not considered a parent of a child conceived by ART. Even though Pennsylvania hasn’t adopted that law, its Supreme Court held that the lower courts hadn’t looked carefully enough at state case law concerning enforceability of contracts, which might violate public policy. The high court determined that when a child is conceived outside of sexual intercourse but instead in a clinical situation using donated sperm and clinical implantation of the embryo, the state’s public policy requiring that both parents be held responsible for the child’s support simply doesn’t apply.
“Many more single and married women these days are turning to anonymous sperm donors to help them have a child,” notes Phillips, a former family therapist who has been named a “Super Lawyer” and one of the top 50 female attorneys by Philadelphia Magazine. “Of course they need to have an enforceable contract to make it clear that they don’t expect the donor to have any parental rights or obligations.”
#Although two justices dissented with the majority opinion, citing issues of the rights of children born out of wedlock and of the donor not actually being anonymous to the mother, the majority held that private contracts with sperm donors are enforceable even if the identity of the donor is known.
To read the complete Pennsylvania Law Weekly article on this issue, visit www.mydivorceattorney.com.