Indiana Sperm Donor Contracts: When Is The Man Who Provides Sperm A Father? It All Depends

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.

16 responses to “Indiana Sperm Donor Contracts: When Is The Man Who Provides Sperm A Father? It All Depends

  1. I think the title of this post should read “When does the man who provides the sperm that creates a child have legal responsibilities for his child? It all depends”. The man who supplies the sperm that makes a new life is always the father of his offspring but not necessarily a guardian/nurturer. Sorry, it’s just a sticking point of mine.

    • A person is a parent to their own offspring. Every child born has a maternally related parent, called a mother and a paternally related parent called a father. Human infants will die unless someone feeds them and protects them from the elements at least long enough for them to learn how to provide for themselves.

    • What about it it was “a legal father” or “recognized in law as the father”?

      I think the court agreed with you, actually, as it continually called him “Father.” (I think with the capital, yes?) But I really don’t think the court wants to say that a father can be excused from supporting his child by virtue of a contract, so the only way I can really understand the conclusion is by saying that the court ultimately decided that the mother failed to prove that Father was the (legal) father.

      I do understand the point you are making. I agree that the language matters, even if we don’t want to use terms the same way.

      The court’s opinion is very muddled, though.

      • “a legal father” or “recognized in law as the father”

        I think “legal guardian/parent” would work better.

        I don’t think we should mess with the word father (source of sperm). And like the word/title father, the word mother should be used as the source of egg and gestational carriers should be called gestational mothers. It preserves the dignity/integrity of the human connections. I think it is discriminating for the law to say some children have a mother and/or father and others do not. That is simply not true and can be damaging not only to the children (and their own offspring) but to society at large. Legal guardian should be used for those who legally parent. This could all be resolved by requiring legal parenting contracts prior to conception. Just my 10 cents.

        • PS: A new article that picks up on part of this point you might be interested in:

          Objectifying birth mothers as gestational carriers
          http : //thehumanfuture. cbc-network. org/2011/01/objectifying-birth-mothers-as-gestational-carriers/

          • Thanks for that linkn.

            Isn’t this objectification particularly a problem if one says that the egg provider is the mother of the child? If instead I accord the surrogate recognition as “mother” I think that eases the problem, doesn’t it?

        • Well, this is where we get to disagree. I think those who care for you through thick and thin are your parents. (I don’t mean nannies or babysitters–I mean the folks who are always there and so on.) The gamete providers are interesting and may deserve special recognition/a title of some sort. But if they’ve never laid eyes on you, I wouldn’t call them parents.

          There are some children who, regretablly, have no parents, which tells me there is no central loving adult in their lives. That’s tragic, I grant. But it describes a sad reality.

          There are also children who have only one parent (which can be fine or not) and those who have two parents (which can be fine or not) and those who even have three parents (insert same parenthetical here). I don’ t think the number of parents guarantees any particular outcome.

          I suppose my operating principle is that “parent” is the title we should give to the people who stand in a certain social/emotional/psychological relationship to the child. That’s not the principle you would use, I know. But I think this frames the disagreement reasonably clearly.

          FWIW, it’s clear that the gamete providers can be parents, they just may not be parents. And even as I use it, parents may be legal parents or not. Same is true for you, I think. (As where a sperm provider is not recognized as a legal father.)

          • I do disagree. But I think you misunderstood me. I’ll try to summarize it to make sure I was clear:

            Sperm provider = father
            Egg provider = mother
            Gestation provider = gestational mother

            Legal guardian(s)/legal parent(s) = social and can be any of the above or none of the above. If a person wants to be a legal guardian/parent but is not a father (sperm provider) or mother (egg provider) it should be done through a legal relinquishment (by sperm/egg provider) and adoption (by non-sperm/egg provider) process. Preferably pre-conception by intent. Until that legal relinquishment/adoption process happens, the father (sperm provider) and mother (egg provider) are the parents. This would work with the terminology used in the UN Rights of the Child as well. Does that make sense?

            We may still disagree but I wanted to make sure I was clear.

            This also addresses/explains the terminology re: “gestational carriers” and the objectification issues discussed in the article I linked to.

            • Right–sorry, I had mis-described (and I think to some degree misunderstood) your position. I do think we disagree, but I need to think a bit exactly where I think the core of the disagreement lies.

              I think (though do correct me if I am wrong) that you would start with initial legal rights in the providers of the gametes. Legal rights could then be moved around from there under appropriate circumstances (I just want to blur over the circumstances for the moment, because that is another area of complexity.) I would not presume any legal rights to the providers of the gametes (at least, not because they provided gametes.) That is a substantive difference, I think, and it drives the language choices I want to make.

              • “I think (though do correct me if I am wrong) that you would start with initial legal rights in the providers of the gametes. Legal rights could then be moved around from there under appropriate circumstances”

                Yes, but with child centric terminologies. Not “legal rights in the providers of the gametes” but rather “legal responsibilities towards the best interests of the child”

                For example a man who does not intend to impregnate a woman through recreational sex but conceives a child w/her in the process, has a responsibility for his offspring unless the courts decide that that would not be in the child’s best interest – which may decide that contact should be restricted but financial support is required. If another adult wants to assume legal parenting for that child, then a legal relinquishment/adoption process could absolve the father’s financial responsibilities and transfer it to the new legal guardian/parent. But the father will always be that child’s father but not necessarily his legal guardian/parent. That’s just an example. Each situation will be different of course.

          • “There are some children who, regretablly, have no parents, which tells me there is no central loving adult in their lives. That’s tragic, I grant. But it describes a sad reality. ”

            But at the same time the reality is that every single one of us does have a mother and a father, regardless of the intent involved and how the two combined their egg/sperm, who may or may not be a legal guardian or play a social role in our lives. This again is my sticking point. The legal use of the word parent, I believe can and should involve a legal relinquishment and adoption process if a non-mother/non-father (sperm/egg) are to be legally recognized as a parent – which could be just about anyone.

          • A question occured to me that I’d like to throw around:

            Is the word “Parent” synonymous with father/mother?

            Can someone be a father or a mother but not a parent?

            I ask because while I still disagree with Julies formulation what makes a “parent”, I’d have a much stronger visceral reaction in the past when she’d say that a donor is not a “father.”

  2. This case proves the illogic of differentiating between how exactly the sperm got there in determining parenthood.

    I don’t know why we should treat it any differently than a separated heterosexual couple which drew up a contract prior to the birth of a child. Whatever Indiana law concerning that contract is, should apply to this contract.

    • I’m inclined to agree with you and I wonder if this isn’t a broader point of agreement. Having parental status (or legal obligations) turn on the manner in which the sperm arrives at its destination seems very odd.

  3. Would the court have treated this case differently if the mother wasn’t a lesbian? What if her former partner had been a man, who perhaps was infertile, or became a parent after the baby was conceived? Would it matter in that case if the baby was conceived by intercourse or AI, or if there was a contract?
    Lots of unrelated men are still on the hook for child support because they took on a parenting role, sometimes believing the child was theirs, sometimes knowing it wasn’t. But courts never care in that case, they just look at how much time and money he was providing when the partners split up. I don’t even think marriage enters into it. Kind of explains why some men avoid a parenting role to their girlfriend’s kids, though respect for the former boyfriend might play into it too.

    • The questions you raise are fair ones and I don’t know the answers. The Mother’s partner drops right out of the story. In my world–the one where I make up the rules–she’s a parent and she’s liable for child support for both kids. This was pretty clearly a joint endeavor in which she participated for a substantial period of time.

      If a man comes along after a child is born and takes a parenting role I don’t think he is particularly likely to find himself on the hook for child support. But if a man comes along before a child is born, the law does tend to look at that differently. If he holds the child out as his own for a period of time, he might be a parent. (It’s still less common for women to have access to parentage via holding out.) If he marries the mother, he’s going to be presumed to be the parent.

      I suppose I hadn’t thought of it this way, but perhaps it is odd that we treat men who arrive on the scene before birth differently from those who arrive on the scene afterwards. And maybe I need to think a bit more carefully about whether this is really true. Some of this is probably historical and dates from a time when we didn’t have great ways of figuring out who provided the genetic material and figured that if I guy was willing to claim the child he probably knew what he was doing.

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