by: Julie Andrews, Attorney
Two cases have recently appeared in the media sparking an interesting debate about the issue of child support for children who have been conceived via sperm donors. The question of the sperm donor’s legal responsibility to financially support the artificially conceived child has interesting considerations. The court decisions of these cases may surprise you.
Hoosier child support issue
The first case involves a married Indiana couple who were unable to conceive a child of their own due to the unlikely vasectomy reversal prognosis. Wife’s longtime friend knew of the couples issue and he offer to donate his sperm. The couple accepted the offer. The couple purchased insemination paraphernalia from the internet to perform the procedure in their home. The procedure was successful resulting in the birth of a son. The parties conducted the same procedure with the same sperm donor a few years later again having success with the birth of a female child.
The couple ultimately divorced. The Husband claimed that two children were born only to Wife and they were not children of the marriage. Husband continued to argue that he should therefore not be financially responsible for the children and that the sperm donor should bare such responsibility. Husband lost his argument at the trial level and he appealed claiming that he did not knowingly or voluntarily consent to the production of the children through artificial insemination. Husband’s appeal was unsuccessful as the Court concluded that the children were children of marriage and therefore, the father and mother have an obligation to support them. (Steven Engelking v. Amy Engelking)
What happened in Kansas?
In Kansas a child support case emerged with a different twist. A lesbian couple who wanted to have a child together placed an ad on Craigslist for a sperm donor. The man who answered their ad signed an agreement with the women which released him from all parental rights and responsibility for the child in exchange for his sperm. The women purchased artificial insemination equipment on the internet and performed the procedure in their home. They were successful and a female child was born to them. The women later separated but agreed to co-parent the child with the biological Mother maintaining custody of the child. The non-biological woman became ill and unable to work. The biological Mother subsequently sought financial assistance from the state.
The state required the mother to disclose the name of the biological father in order to receive public assistance. Upon releasing the name of the father, the Kansas Department of Children and Families filed a claim against the man for child support. The man claims that the agreement between him and the women should be recognized and upheld, thereby releasing him of all financial responsibility and parental rights and the case should be dismissed. The state has based its argument on the Kansas Parentage Act of 1994, which states, “The donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor’s wife is treated in law as if he were not the birth father of a child thereby conceived, unless agreed to in writing by the donor and the woman.” In other words, since the parties did not engage a physician to perform the insemination procedure, the man is responsible for the child and the agreement is void as it is in contradiction with Kansas law.
Both of these cases raise important questions regarding the responsibility that parents have to financially support their children when artificial insemination is utilized. When a man chooses to donate sperm, whether he is a friend of the family or an anonymous donor seeking compensation– what financial responsibility does he have to the child? In Kansas it is a buyer-beware situation if a physician is not utilized. My investigation indicates that the procedure costs around $2,500.00 through a physician. However, artificial insemination equipment can be purchased from the internet for approximately $30.00. The low cost of the DIY kit may be intriguing, but if you are in Kansas or a state with similar laws, the cost may be greater in the long run.
Should the donor’s responsibility change based on whether he donated sperm to a married couple, a same-sex couple, an unmarried couple in a committed relationship, a single woman? What is the difference between sperm donation being given directly to the couple or given at a clinic?
The underlying public policy is that all children should be financially supported by their parents (I decline to embark on the definition of ‘parent’). It is clear that both of the cases above could lead to an impact on the taxpayer’s wallet if sperm donors/parents are released from financial responsibility and the other party to the event is not held accountable. What I find interesting is that the Kansas case doesn’t mention anything about the donor’s ‘rights’ to the child; only his (financial) ‘responsibility’. If he is responsible for financially supporting this child, should he have the right to be a ‘dad’ and obtain parenting time? What I find distasteful about the Indiana case is that these children are around 9 and 7 years old and their Father attempted to terminate his relationship with them, for financial reasons, after forming a very good bond with them and holding them out to the world as his children.
People facing complex issues of child support and paternity should seek an experienced family law attorney. My practice is focused on helping clients through complicated family law issues ranging from child custody and support disputes to contested divorce proceedings.
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