In late December the Court of Appeals in Indiana issued an opinion in a case involving paternity of a sperm donor. It’s rather a curious one.
The facts are fairly simple. Mother (as she is named by the parties) was in a committed lesbian relationship in 1996. She and her then partner wanted to have a child. Father (that’s what the court calls him) agreed he would provide sperm. He did and MF was conceived.
Several weeks before MF was born Mother and Father entered into a written agreement. The agreement, drafted by Mother’s lawyer, included a waiver of rights to support by the Mother and a corresponding waiver of paternity rights by the Father.
Seven years later, in 2003, CF was born. Mother was still in a relationship with her lesbian partner. Apparently Father was again the source of the sperm.
In 2008, when the children were about 12 and 5, the two women parted ways. There’s no hint of whether the children maintain any sort of relationship with the Mother’s former partner, nor do we know if she provides any sort of support for the children. However, after the separation Mother sought child support from Father. Father objected, essentially citing the agreement.
Now there are several ways you could think about this. You could say it’s a contract question–were the elements of a contract proved and so on. This leaves Father’s obligation to support the children within the control of the parties.
Though this may seem like a fairly simple approach, it’s one few court’s would take, for several different yet related reasons. In general, the right to support is not the parent’s right to give up. The right is owed to the child. Further, you can see how much trouble would follow if people could simply sign agreements about who would be and who would not be a parent. That’s possibly individual autonomy taken to the extreme.
Another way to think about this is to say that this isn’t really just a two party contract. There’s a third party (the child) whose interests should concern us. There may even be a fourth party–the state–though the state’s interest may not really be separate from the child’s. (I don’t think we think of the specific child’s particular interests most of the time, but rather the generic child, which does seem to bleed right into the interests of the state. In any event the other interests at play demand something more than a simple contracts analysis.
You could also say that the essential question is whether or not Father is indeed a legal father. If he is, then he has a support obligation. If he is not, then he does not. Of course, this will just bring you right back to the contract–the question is whether the contract in any way affects his status as possible legal father. Could it be that absent the contract he is the legal father, but given the contract, he is not? This is going to take me right back to thinking about what the meaning of the contract is.
Now back to Indiana. First, the court noted that it was clear that Father was genetically related to both kids. While Indiana has not enacted a version of the Uniform Parentage Act (UPA) the court notes that the majority view under that act is that if a donor provides semen to a doctor for the insemination of a woman not his wife, then he’s not a father.
The court further notes an earlier case noting that there is no such thing as artificial insemination by intercourse. This appears to firmly set the court on a path where the matter in which the sperm gets to the egg is critical. If it is intercourse, then the man will be a father. (And I suppose if the man is not a father, then the contract isn’t terribly problematic, because he doesn’t have any obligation to support to give up anyway.)
So the critical question here is how did insemination occur. And here the court steps into a particularly technical analysis which delights a civil procedure teacher’s heart: Who has the burden of proof. Suppose (as is apparently the case) there isn’t any evidence of how insemination occurs. Who wins and who loses? In this case the court holds that the woman carries the burden because she seeks to undo the contract and so, in the absence of evidence, she loses. That means Father is not the legal father of MF, the child born in 1997.
Curiously, the court then goes on to reach a different conclusion about CF, who was born in 2003. The court finds that the contract from 1997 doesn’t apply to CF. In the absence of any contract somehow the fact of genetic relationship becomes determinative.
That’s a twist I cannot quite make sense of. It suggests that DNA is the key unless you have a contract in which case you can get away from the DNA unless you prove conception was by intercourse. That’s just a very odd way to wrap it all up.