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A New Direction for Private Contracts Regarding Child Support and Care?

Margaret Klaw, Esq. on 12/5/2008

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What does it mean to be a parent? As family configurations morph into increasingly complex constellations, our appellate courts are struggling to answer this question. Those cases where assisted reproductive technology is at play are particularly challenging, as the components of parenthood are re-distributed between multiple players.

The Pennsylvania Supreme Court recently tackled the thorny issue of sperm donors and child support, addressing the question of whether the court should enforce a private contract between a woman who wants to conceive a child and a man who is willing to help her do it so long as he is not on the hook for supporting the child. In Ferguson vs. McKiernan, 940 A.2d 1236, 2007 Pa. LEXIS 2895, the court held that such a contract is enforceable, in seeming contradiction to the sacred tenet that a parent cannot waive a child’s right to support and, despite the plain language of the support statute, according to the dissenting justices.

In an age where more and more children are conceived through donor insemination, the high court found that such an outcome was compelled by strong public policy considerations in favor of the use of a known donor, rather than the anonymity of a sperm bank. To hold otherwise, Justice Baer said, would mean that a woman who wishes to have a child but cannot conceive through intercourse would be unable to seek sperm from a man she knows and admires; someone familiar whose background, traits, and medical history are not shrouded in mystery.

Then there’s the Pennsylvania Superior Court case, J.F. v. D.B., 2008 PA Super 2, 941 A.2d 718 (Pa. Super. 2008), regarding triplets conceived via in vitro fertilization of one woman’s eggs by the intended father’s sperm, with the resulting embryos implanted in a different woman, a gestational carrier. This woman then carried the triplets to term, gave birth to them, and then, in violation of the contract she signed with the father, sought custody of them. Although the gestational carrier was initially awarded custody, on appeal the Superior Court reversed, finding that she lacked standing to do so and the triplets ended up in the sole custody of their father.

But what about all that child support the father paid to the gestational carrier during the time she was taking care of the triplets? The father tried to get her to repay it, claiming that if she did not have standing to seek custody, she likewise had no standing to seek support. Here, the Superior Court disagreed, reasoning that she was caring for the children even if she had no right to be, and the support benefited them during that time, so the father was not entitled to recoup the money.

The common theme seems to be that private contracts regarding children – their care and their support – are starting to be upheld. While these arrangements are not that new, it is new that they are getting tested through litigation. Slowly, the courts are starting to sanction the idea that you can choose some aspect of parenthood but not another; you can contribute DNA but nothing else; you can nurture in the womb and give birth based on a deal that you will be paid for that service and have no further contact with those children after birth.

The tricky part for the Court is balancing the common sense approach of allowing adults to contract as they like with the need to protect the interests of the children born from this technology whose needs for care and support are no different from any other children. In the case of the triplets, the contract was upheld as to custody but not as to support, thus tipping the balance in favor of the children. So far, these results seem sensible, but stay tuned.

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