The conception and birth of a child is an adventure and a miracle for heterosexual and same-sex parents alike. However, the “adventure” to parenthood upon which same-sex parents bravely embark is more like something out of “Indiana Jones” than TLC’s “A Baby Story.” In the quest for second-parent
or step-parent kinship rights, the parent who adds no genetic material to the pot sometimes comes up empty-handed. Heterosexual couples are not typically faced with this unfortunate outcome even when they use in vitro fertilization (IVF) because they sometimes have the required genetic material to move forward. On the other hand, lesbian couples require a third-party sperm donor who may or may not have parental rights superior to those of the non-birth mother. This all depends on the laws of the particular state in which conception occurs, the type of donor used for the conception and the location where conception takes place.
Although heterosexual couples sometimes need to use sperm donors too, the law is on their side. In 1973, the Uniform Parentage Act was passed, which, among other things, stated that when a husband consents in writing to the insemination of his wife by a known third party, and the procedure is done by a licensed physician, the husband is legally considered to be the biological father of that child. The donor, therefore, has no legal parental right to the child. The Act also allowed for the mother and the donor to form a legally binding contract in which the donor would formally relinquish all of his rights to the child. In recent years, the Act has been extended to cover same-sex partners that are legally married or in a civil union. However, many states have failed to adopt the Act, and Pennsylvania (being one of those black-hole states) has been forced to create its own parentage laws through case law.
Under Pennsylvania law, if the mother of the child is inseminated with semen obtained from a sperm bank, and if the insemination is performed in a licensed IVF facility, a sperm donor will have no legal claim to any resulting child. Moreover, the existence of a contract protects the donor from a claim for child support. Conversely, this law has been held by the courts to mean that if the insemination was done outside of a licensed facility, or if the sperm was not obtained from a sperm bank, the donor is not considered to be a sperm donor, but is legally the father of the child.
In the seminal case Ferguson v. McKiernan (2007), a friend who had previously been romantically involved with the mother provided semen to a clinic for her insemination. The donor and mother entered into a contract relieving him of any parental rights or responsibilities. Five years after the child’s birth, the mother sought child support. The lower court initially found in her favor, relying on the fairly universal rule that a contract to waive child support where the child is conceived through intercourse is not enforceable. The Pennsylvania Supreme Court, however, reversed and ruled that the contract was enforceable. Although Pennsylvania does not have an Artificial Insemination statute clarifying the rights of donors and recipients, the court found no meaningful distinction between the circumstances of this insemination (using a physician, with a contract) and anonymous donation, where the donor would be protected from claims for support.
Just to show how not uniform the laws are state to state, the opposite result occurred in New York in a case with almost the exact same facts.
And in Kansas, a man is currently paying child support for a child he claims he is not a “parent” to and instead simply donated genetic material. In 2009, two women were in a committed lesbian relationship when they decided to become parents together. They placed an advertisement on Craigslist (yes, Craigslist!) in search of a man who would make a private sperm donation to them. Although this may sound unusual, it is an increasingly common practice among prospective parents seeking to save money. A year after the child was born, the two women broke off their relationship. After the breakup, the birth mother applied for welfare benefits on multiple occasions. On forms requesting her to identify other household members, she did not include her ex-partner and on forms requesting that she identify the child’s father, she indicated that the father was an unnamed “donor.” However, the donor’s identity was eventually revealed when the birth mother finally complied with the request by the Kansas Department for Children and Families that she turn over a copy of the sperm donor contract. Once she did so, it became clear to both that there was another female-intended parent and that the donor was not anonymous.
Although the three adults signed agreements making clear that the donor’s role was to cease after he donated the sperm, the state of Kansas claims he is the father of the child that was conceived with his sperm. Kansas won the first round in the litigation (which the donor said he will appeal), where the trial court ruled that the agreements between the donor and the two women are not enforceable, and that he is liable for child support dating back to the child’s birth.
As such, while not always a couple’s preferred method, pursuant to the law, the legally safest route for lesbian couples is to use sperm-bank semen and be inseminated at a licensed IVF facility. While this is also the most expensive option, it beats fighting legal battles over parentage rights in the future.
Still, some women will choose to use a known donor or will use sperm-bank sperm outside of a facility. In this situation, the rights of the donor grow to encompass the right to petition the court for visitation, and the right to petition for parental rights to the child. In such cases, there are numerous steps they can take to protect themselves, such as creating a written contract. This contract must detail the intentions of all parties involved and state that the donor relinquishes all rights to any child produced by the donation. That’s not to say that every contract is infallible. However, they do provide the court with the mindset and intention of the parties before the time of conception, and give the birth mother more leverage against the donor’s assertion of parentage or protect the donor against a claim for child support.
Childbirth should be an exciting time for a family to bond in their home with their loved ones — and not in a courtroom with a judge. The real lesson to take from this is that the decision to conceive with donor sperm has legal, in addition to medical, consequences. It is always best to keep the convoluted clear and abide by the laws of your state if you want to avoid heartache later on. By knowing the law, and obtaining legal representation, individuals can overcome and even prevent the common pitfalls associated with family planning.