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Dorothy K. Phillips is a frequent contributor to PENNSYLVANIA LAW WEEKLY. All articles are available in pdf format.
LIFE IMITATES ART
High court has breathed life into ART – Assisted Reproductive Technologies — agreements
31 PLW 489; May 5, 2008 pdf
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By Dorothy K. Phillips
Special to the Law Weekly
he state Supreme Court ended 2007 by deciding a case of first impression, concerning whether a sperm donor involved in a private sperm donation could be held liable for child support, notwithstanding an agreement between the parties whereby the mother would not hold the donor financially responsible and the sperm donor would not exercise any parental rights.
In Ferguson v. McKiernan, 940 A.2d 1236 (Pa. 2007), the justices decided that the private agreement at issue was enforceable and would be upheld. The sperm donor had no obligation for child support and, conversely, could not seek any parental rights or privileges.
According to the Supreme Court opinion, the facts of Ferguson were that the mother and the sperm donor made an oral agreement that McKiernan would donate his sperm through a method which would have all of the indicia of an anonymous sperm donor, carried out in a clinical setting, and that mother would not seek child support and that the sperm donor would not seek parental rights with regard to the resulting pregnancy and birth. For five years, both parties lived by the agreement, until the mother filed for child support.
The sperm donor went to Hershey Medical Center to provide the sperm sample. Mother's eggs were subsequently fertilized by the sperm and implanted in her. The sperm donor gave no financial support to the in-vitro fertilization (IVF) procedure and mother gave birth to twins.
The trial court initially found that the parties had entered into a binding oral agreement prior to the conception of the twins where sperm donor would provide his sperm and give up any rights and privileges to the children and mother would be implanted with eggs fertilized by the sperm and would give up her right to any support from the sperm donor.
However, in the final analysis, the trial court found the agreement unenforceable, citing Kesler v. Weniger, 747 A.2d 794 (Pa. Super. 2000) where the Superior Court court found that a parent cannot bargain away a child's right to support. Also see Knorr v. Knorr, 588 A.2d 503 (Pa. 1991).
The Superior Court affirmed the trial court even though it also found that the oral agreement between the parties was a valid contract. See the Superior Court opinion in Ferguson v. McKiernan, 855 A.2d 121 (Pa.Super. 2004).
Nonetheless, the Superior Court in Ferguson found the valid agreement to be unenforceable as against public policy, stating "Due to the fact the contract between appellee and appellant bargained away the legal right not held by either of them, . . . but belonging to the subject children, the contract was not enforceable."
We are living in a time where Alternative Reproductive Technologies (ART) are utilized daily by people who wish to have children. There are births that take place due to artificial insemination and there is IVF whereby the eggs of the mother are removed and fertilized by sperm outside of the mother's body and the eggs are implanted into the mother.
We are also living in a time when the egg and sperm of a couple are implanted into a surrogate because the wife cannot carry the pregnancy. Variations of surrogate pregnancies are when a surrogate is implanted with eggs and sperm other than those of the biological parents or with the sperm of the biological father but the egg of a donor or of the surrogate herself. Many will recall the case of In the Matter of Baby M, 109 N.J. 396 (1988), which found surrogacy contracts unenforceable.
Presently, surrogacy contracts are unenforceable in Pennsylvania. In 2005, Pennsylvania Senate Bill 408 was introduced which would have provided that surrogate-parenting agreements would be valid and enforceable. That bill defined surrogate-parenting agreements; set forth the terms of such agreements; and required judicial approval of the surrogacy agreement. That bill was never voted upon and died in committee.
A Giant Step
The state Supreme Court, however, took a giant step in Ferguson. The majority held that an agreement between a would be mother and a willing sperm donor where the sperm donor provides the sperm in a clinical setting for IVF and where the sperm donor relinquishes parental rights and mother agrees not to seek child support is enforceable. The court reversed the findings of both the trial court and the Superior Court that, based on prior case law in the Commonwealth, found such agreements to be unenforceable. In so doing, the Supreme Court of Pennsylvania cited the Uniform Parentage Act (UPA), a proposed uniform law that has been adopted by at least 19 states. Footnote 10 of the court's opinion noted that the UPA, as amended in 2002, is available in electronic form at http://www.law.upenn.edu/bll/ulc/upa/final2002.htm.
Although Pennsylvania has not adopted the UPA, New Jersey has. Joel L. McKiernan, the sperm donor, argued that the language of UPA Section 702 provides unequivocably "A donor is not a parent of a child conceived by means of assisted reproduction." The comment to Section 702 provides that the donor cannot secure parental rights nor be sued to support the resulting child.
The state Supreme Court determined that neither the trial court nor the Superior Court had undertaken a rigorous analysis required by the case law of Pennsylvania regarding the enforceability of contracts that purport to violate public policy. See Mamlin v. Genoe, 17 A.2d 407 (Pa. 1941); Hall v. Amica Mutual Insurance Co., 648 A.2d 755 (Pa. 1994); and Eichelman v. Nationwide Insurance Co., 711 A.2d 1006 (Pa. 1998). The Supreme Court pointed out that the major difference between the holding of Kesler v. Weniger and the issue before the court regarding the sperm donor and mother was an absence of sexual intercourse regarding the latter. The Supreme Court in Ferguson went on to examine that there are many different types of Alternate Reproductive Technologies involving non-sexual clinical options for conception. The court noted that there are "all manner of arrangements involving the donation of sperm or eggs … in contemporary society, many of them couched in contracts or agreements of varying degrees of formality."
In the UPA, Section 102 (4), "Assisted reproduction" is defined as "a method of causing pregnancy other than sexual intercourse." UPA Section 102(4)(A-E) cites various methods of assisted reproduction, including, but not limited to, "intrauterine insemination; donation of eggs; donation of embryos; in-vitro fertilization and transfer of embryos; and intracytoplasmic sperm injection." The common denominator of all of these assisted reproduction methods is that they do not involve sexual intercourse.
Brave New World
The state Supreme Court acknowledged that women, single, married and otherwise have turned to anonymous sperm donors in order for them to conceive. The court acknowledged that the anonymous donor and the donee enter into contracts with the sperm bank prior to conception and the gravamen of these contracts is that the sperm donor has no parental rights or obligations and the mother agrees that she shall not seek financial contribution from the sperm donor.
The court further confirmed that it is the public policy this state to require both parents to be responsible for the support of a child which they create and conversely, that they cannot contract away the rights of support for that child involved a situation where the parents had sexual intercourse. The Supreme Court then reasoned that when one takes sexual intercourse out of the equation, and inserts ART where there is a clinical situation to secure the sperm and another clinical situation with regard to implantation of embryos, no such public policy is at issue.
Justice Thomas G. Saylor filed a dissent because he reasoned that 23 Pa. C.S. Section 5102(a) states "in every case where children are born out of wedlock, they shall enjoy all the rights and privileges as if they had been born during the wedlock of their parents." The majority differentiated Saylor's argument by finding that Section 5102 relates to a child's legitimacy, not to his or her entitlement to support. Saylor further dissented by stating that one can always determine the identity of the father by a court determination of paternity and therefore the father must support the child. Justice J. Michael Eakin also filed a dissenting opinion reasoning that a private contract where the sperm donor is known, is equivalent to the situation where the parents had sexual intercourse. Eakin argued that the standard should be the best interest of the children and since these children have a right to support from both parents, and the sperm donor is the father, under the facts of Ferguson, the sperm donor father must support the child.
The majority, however, declined to accept the rationale of either of the dissenting justices. The majority hung its hat on the fact that both Saylor and Eakin insisted that on the facts of the instant matter, there are identifiable parents. The majority reasoned that a sperm donor's identity could be compelled by subpoena and thereafter all anonymous sperm donors so identified would become responsible for child support. The majority, consisting of Chief Justice Ralph J. Cappy and Justices Ronald D. Castille and Max Baer, reached into the 21st century and with its reversal of the lower courts, pronounced that even in a situation where the sperm donor is identifiable within the context of a private contract, that contract is enforceable and, by so doing, have protected the Alternate Reproductive Technologies set forth in Uniform Parentage Act even though the Act has not been adopted by the Pennsylvania legislature.
In 1932, Aldous Huxley wrote Brave New World. The first of that classic opens at the Central London Hatchery and Conditioning Centre, which produces human beings. The Director of Hatcheries and Conditioning is in the Fertilizing Room and is giving a tour to students, describing not only what takes place in the Hatchery and Conditioning Centre, but also how a specimen's gender and intelligence is predetermined. In his dissent, Eakin wrote "conception is accomplished in ways our forebearers could never have imagined, and will in the future be accomplished in ways we cannot now imagine." Although Brave New World was set in an environment of a totalitarian society, the methodology described in Chapter One has come home to hatch. The state Supreme Court has now recognized ART, which was the stuff of science fiction and fantasy in the early part of the 20th century but is now often how life begins.•