Husband Is Father of Child Born Via Insemination

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.

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28 responses to “Husband Is Father of Child Born Via Insemination

  1. great juxtaposition.steven differ from breit?
    1. one is and one is not the genetic father. considered irrelevant by the court in both cases.
    2. steven was legally married at the time. Perhaps this is an essential difference.
    3. The wishes of the mothers. in steven’s case, the mother wanted him to be considered a legal parent. In breit’s case she didn’t. I suspect a bias towards the wishes of the mother which I think is wrong.
    .
    How are they the same?
    Both had obtained the status of legal parents, albeit by different ways (marriage v. VAP) and both had functioned in that role. Perhaps this was ultimately the deciding factor.

    • Look at how wishes and desires are what fatherhood turns upon rather than cold hard fact. The man that made these children should take responsibility for them and that is that. This other man covered for him for a while and now he’s done with that because he is done with the marriage. He was the step father and now he’s acting like one, the marriage is over and so should be his relationship with her children. The father of these children never should have been off the hook to begin with. His children have been short changed and its him that owes not their step father.

      • If there biological father would suddenly step in that wouldn’t erase the loss and the abandonment by steven whom they had known as their father up to now.

        • Certainly not. The adult thing to do would be for them to cooperate to the child’s benefit. Give them what they deserve which is their own father acting responsibly towards them – AND be sensitive to the bond they’d created with their step father by either agreeing the step father would continue to see them on a regular basis despite not being married to their mother any more and that he could continue doing certain special activities they had done like soccer every weekend or dinners twice a week or whatever but that the children also need to get to know half their family and take their rightful place in that family as well. They need to be taught what it means to take responsibility for their actions and to truly care about how their actions impact the lives of others. To care about people especially people they put on this earth. To let the kids know that they do matter to both people who put them on this earth and that they can depend on them both. That is responsible that is what to strive for. Anywhere above total lying and manipulation of reality is cool.

        • also someone who really wants kids should think twice before marrying someone who had a vasectomy. People don’t just have vasectomies for fun. They have vasectomies, because surprise surprise, they don’t want kids!

          • Well to be fair, sometimes people make a decision that they can’t handle or afford or want more children based on current life circumstances and then something changes – I’ve heard of people regretting sterilization if they left an ex and it was the ex who didn’t want more kids, or they did it for financial reasons and then get a much better job, or they lost a child and want a chance to raise another living child.

        • So your preference would be to allow the lie to stand rather than recording the truth and holding the appropriate people rightly accountable. Your solution would be to forever deny the child recognition as a legal member of their own family and forever condemn them to play the roll of child to a person who is not their father in a charade that exists solely to honor a marriage that has long ago dissolved. Nice.

          Couldn’t they just stay friends if they wanted instead?

      • I’d include among the cold hard facts that Steven assumed the role of parent–psychologically and socially–for these children for a significant period of time. As a result, significant relationships developed–relationships that precluded anyone else from playing the role he chose to play. Whatever you think should have happened, this is what happened and actions taken (his–in taking on the role) have consequences in the lives of children.

  2. I also find it very sad for the children that Steven abandoned them after having such a long term relationship. I believed that the court ruled correctly, because although I am a proponent of the recognition of genetic relationships, I agree with your on the importance of those relationships already established in real life. I don’t think that you can just out and change your mind later.

    But while you may think the solution is to downgrading of the importance of genetics socially, I do not agree. After all this is what happened here- the parties acted as if genetics was unimportant- and it backfired in the long run.

    The solution would have been to emphasize the significance of genetics to steven evidenced by the more subtle cues he gave, seeking a sperm donor he saw as similar to himself) which might have led them not to get into t his situation in the first place.

    • Nah the solution would have been for everyone to wear their own hats and live an authentic existence as who they really are rather than as who they wanted to be at the moment. He is now acting like the step parent that he actually is. He was committed to her children during their marriage which is now over and he’s ready to move on with his life. They are not his kid’s not his problem. Sad that the emotional bond of step parenthood rarely outlasts the relationship the bond is based on but true. He has no connection to those children were it not for his wife now his ex and that is the end of it. The father however has a connection to his kids despite not being married to the mother and should act like it. It’s not the ex husband that owes them physical or financial support it’s their father

      • What a stupid solution, make the ex step father continue to act as the kid’s father and make the real father do not a gd thing. Oh these kids rights are fatly trampled on fatly

      • I am really taken aback that you think this without considering how devastated those kids are that the only father they have ever known has rejected them because they are not genetically related. You can’t just choose to have children (however you do this whether it’s adoption, natural conception or use of a donor) then decide it doesn’t suit you to be a parent any more and abandon the kids, physically, financially and emotionally. That is not what being a parent is about. He decided that he could handle it back when the kids were conceived, and it’s unacceptable for him to back out now.

        • i hope he will realize this himself, it’s not so long since he has stopped visitation the situation is rectifiable

        • “You can’t just choose to have children (however you do this whether it’s adoption, natural conception or use of a donor) then decide it doesn’t suit you to be a parent any more and abandon the kids, physically, financially and emotionally. ”
          Yes you can and did. He can’t choose to have kids, he’s sterile. Someone else had to choose to have kids ‘for him” and to do so, had to abandon them. Nobody is outraged at their father’s abandonment. Step parents bond with their step children all the time. Step parents are legally obligated to physically and financially support their spouse’s children, and he did that. When the marriage is over the financial support ends. The parent can agree to allow visitation between their ex and their kids if they are worried about the transition being emotionally scarring. I’m not insensitive to that. My own family that I grew up in is deeeeeply blended. But honestly why would you put the financial burden on the person who was just thee spouse? The child has no, should have no more permanent connection to him than their mother did. Seriously how fair is it to bind a child permanently by law to your spouse when you’re not even bound to them permanently by marriage? There is someone out there they are permanently connected to, who reproduced to create a child that he has not been taking care of. He objectified his child and made a gift of her as if she was not even human. Now is his opportunity to treat her like the human he created and take care of her, include her as part of his family because she is part of his family. Why should the live out this charade at all let alone long past the marriage the charade was intended to serve.

          Step parents get divorced all the time they don’t stay financially responsible for their step kids even though they might still be allowed to visit with them. He is not asking for anything unusual or unreasonable. What is unreasonable is to act like their actual father just makes children he has no intention of taking care of and that’s just dandy. He was manufacturing them for sale we can’t make him take care of them support them. No lets go after the step father label him their father for life. That is so unfair to the children who deserve their father’s support.

          Why don’t these children this child deserve their genetic father’s support? Why do millions of other children get their father’s named on their records get their support based on just being their offspring but these kids don’t deserve that?

          • doesn’t matter how anyone gets to be a legal parent; as long as it was lawful, it’s a permanent status. to say otherwise grossly disregards children’s welfare. you may disagree with the way it happened, but once done, is done.

            • It matters very much how they get to be a legal parent if the laws that allowed it are discriminatory and result in unequal protection Ki. The whole point of the blog is to discuss where the law is unfair and how it should be corrected.

              How can you even say like “well the law is the law no sense in talking about it.”

              • My whole point is that execution of the law as it stands results in unequal protection for the minors involved and that unequal protection extends not just until they are 18 but for an entire lifetime. They will never have the legal right to be recognized as who they are sibling to sibling or whatever relation it might be. The law forces them to pretend they are not actually related to half their family. They would not be allowed to marry then nephew of their step father because on paper he’d be their first cousin. Outrageously they’d be allowed to marry a full sibling adopted out to another family because on paper they are not related. It gets worse its a farce.

                • Depends how the law is worded, actually. You’d probaby need to read the exact wording for every state. In the recent European incest case, a man who had been adopted as a toddler was convicted of incest for a relationship with his biological sister, whom he met as an adult. So obviously the law there specified a biological relationship and not a legal one.

                  • Oooh I just love you ! Really? Seriously? If I was a lawyer….Do you mean to tell me that in that instance the State will recognize genetic kinship relationships but would not recognize it if say he was attempting to help his sister immigrate to the U.S. from a forign country as many donor offspring are finding siblings all over the world. There must be something that can be done with this beautiful discrepancy.

                    You just said that adopted people (or anyone with a genetically false birth record) and their genetic relatives they have the legal obligations associated with legally recognized kinship but none of the legal benefits.

                    See it just gets worse the inequity is blasting on high.

                • Google reveals that most if not all states specify a either “relative by blood” or “a relative by blood or adoption.” So no, it does not appear the lack of a legal relationship matters if a genetic relationship is known.

                  • Ah but it is a legal relationship if the law recognizes it, its just not a legal adoptive relationship. The two legal relationships do coexist in law for the same person despite the fact that their recorded identity differs from their actual identity. They are still legal siblings in terms of obligations but not in terms of benefits. This is a magical moment for me really.

                  • So if it is not allowed then how can they not allow them to know who is and who is not related to them by blood?

              • I think even if the law were to suddenly change, at the time that stevens became a father he did so lawfully and this should not be revoked retroactively.

        • Being a parent is not about deciding you can handle the financial burden. There are millions of men who did not ‘decide’ they could handle the burden of raising children who are chased down, tested and named as father on their children’s birth records because they are their offspring. They put them on this earth, it is their fault they exist and it is their responsibility to raise them to adulthood. And it is their child’s right to be raised by the people who caused them to exist, not by whoever they were sold to. Wanting a child does not make a person a parent, having one does. If society said children had no right to be the legal children of their parents if they were unprepared or unintended there would be orphanages the size of texas on every corner.

    • So do you feel the same about every step parent who gets a divorce? This one made a mess of it pretending to be their father. Oops more to clean up then .

  3. I also note that you write that the court accepted that facts that Steven had consented to the insemination, and did not accept Steven’s version that he had not consented.
    Does that mean had he not consented, the court would have taken him more seriously? Even after all these years?
    Is there a time limit in which a married man may rebut the presumption of paternity or is it indefinite?

  4. ps excuse me for posting so many separate comments…. I go away but I keep thinking about it! I hope you take it as a compliment.

  5. julie since you like hypotheticals, heres one: imagine the same exact story except that amy got pregnant by sexual imtercourse
    does that change the ruling?

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