Here’s another recent case about legal fatherhood–one I think makes a nice complement to the Virginia case I blogged about recently. This one is from Indiana. I’ll run through the facts quickly first.
Steven and Amy Engelking were married in 2001. Apparently Steven had a vasectomy before they married. The couple consulted a doctor to see if it could be reversed and learned that this was unlikely. As a result, the couple began to investigate the possiblity of using assisted insemination with sperm from another man.
A long-time friend of Amy’s told her that the friend’s husband (SP) would be willing to serve as sperm donor. Steven encouraged the use of SP’s sperm, apparently in part because SP looked like Steven and because SP and Steven shared similar “characteristics and morals.”
Amy ended up doing the insemination at home and in 2004 she gave birth to a son. The process was repeated in 2006 and a daughter was born.
Stephen supported both children and treated them as his own children until 2009 when the couple separated. Even after they separated Steven had a visitation schedule and paid support as many divorced fathers do.
It’s not clear to me when Steven changed his position vis-a-vis the children. In 2010 when he filed for divorce he asserted that the children were not genetically related to him–which is of course true. But he continued to visit with them and to pay support. But by 2012 he was apparently asserting that neither child was a child of the marriage and that he should pay support for neither. (He also stopped visiting the children.) It seems that the core of his argument is that he didn’t agree to the insemination.
Now the facts as I’ve recited them are those found by the court and at least some of these facts were disputed by the parties. The trial court found the version I’m giving you credible and rejected the alternative–which was proposed by Steven. It’s not for an appellate court to second guess the trial court on credibility determinations and this court doesn’t try. It accepts the findings and on those facts, Steven is found to be a legal father. There’s nothing suprising about the fact that when a married couple use donor sperm the husband is the father.
Perhaps this means that the case is relatively unimportant, as given the facts found it is a fairly obvious result. The one potential twist is that the insemination was performed without a doctor. As we have seen recently, the presence or absence of a doctor can be important. There’s actually an interesting footnote on page 6 that suggests that the doctor requirement might be a safeguard against “spur-of-the-moment” insemination contracts. But of course, if you accept Amy’s facts, this is hardly a spur of the moment contract.
I’ve been trying to figure out what Steven must have tried to argue for facts. Presumably he agreed there had been a vasectomy. Did he assert that he had nothing to with the use of third-party sperm? If that’s so, where did he think the kids came from and why did he embrace them as his own for the years he did so? As I say, this probably isn’t really important, but I do find myself wondering about what alternative there is to this story.
In any event, I think it is interesting to think about this case. From my point of view, the court got it right–Steven ought to be the legal father. Some may say its because he participated in the process, but look too at the fact that he acted as father to these children for quite a few years. He just cannot walk away in the end, even if he doesn’t have a genetic link.
Both Steven and William Breit (in the earlier Virginia case) end up being fathers and neither of them is a father because of the genetic connection to the child. But in some ways, the two cases are distinct opposites. In Breit wants to be a legal parent while Steven doesn’t want to be one. I’ve always thought it was interesting to compare the cases where men want in (the Virginia case would be in that category) to the cases where men want out (this case is in that category) and here’s a place where you can look at the side-by-side.