Some time back I wrote about a Delaware case involving a man who was an unwitting sperm donor. In that instance the court determined that the man was not the legal father of the children. In a recent comment, Mark Lyndon pointed out this recent case from the UK which, while somewhat similar, reaches the opposite conclusion.
The parties are unnamed, but here is the basic deal. A married man was contemplating medical treatment that may have effects on his fertility. In anticipation of this, he had sperm frozen in 1999. In June, 2000, he and his wife separated.
Not very long after that, the wife went to the clinic where the sperm was stored, forged his signature, and became pregnant using his sperm. (She says it wasn’t a forged signature but rather a “simulation.” If anyone has any idea what the distinction drawn here is, I’d love to hear about it.) A girl was born in June, 2001. She repeated this process and a boy was born in 2003. (In the meantime, the former husband had remarried and had two other children with his new wife. I don’t think this has any legal significance.)
The former husband was not even aware of the existence of the children until 2004. At that time, one of the kids was seriously ill and his former sister-in-law told him. The man has since formed a relationship with both children who make fortnightly visits to his home.
In many ways, the core of the news coverage seems to be about the financial consequences of this tale. For instance, in 2007 the man was ordered to pay his ex-wife an additional 100,000 pounds as the initial divorce settlement did not take the children into account. That’s hardly surprising as they didn’t exist. And the money questions are hard, partly because we’ve so closely tied support obligations to parentage.
What I mean is this. No one seems to question that the ex-husband is the legal father of these children. (It seems to me he may want that role.) If he is the legal father, then he has an obligation to support the children, right? And when did that obligation begin? At the birth of the children? At his discovery of their existence?
You may well think (as I do) that the ex-wife behaved badly. But does this effect the entitlement of the children to proper support? It seems to me it should not. And perhaps that 100,000 pound award is past child-support? (I know it is irritating that the child support award goes to the ex-wife, but if the children primarily live with her, that is the way it is typically done. Perhaps this is worthy of a separate discussion. It’s also possible that I’m wrong about what the 100,000 pound award was far–and if it isn’t past child support than this piece of the post is irrelevant.)
For my purposes it is important to keep in mind that there are two sets of questions here. First, who are the legal parents of the children (and, all important to me, how do you answer that question)? Second, is there a wrong here for which someone should answer? I separate these questions because I don’t think that legal parenthood should be manipulated in order to punish wrong-doers.
So let’s go back to the badly behaving ex-wife. What is the appropriate sanction for her bad behavior? Perhaps she should have to reimburse the ex-husband for some of the costs he has incurred as a result of her actions–and these might include child support. (This is quite tricky, because I don’t want to diminish the support for the children. Perhaps it’s all just a question of labels.)
Finally, assuming there is a wrong here, is there anyone else we should blame? What about the clinic? The clinic accepted the forged/simulated consent forms presented by the ex-wife. Was it wrong to do so? I suppose this might depend on how obvious it was that the signature was not authentic? Or should it have been a clue that the ex-husband never appeared with the ex-wife? (I suspect it is not that uncommon for only the woman to appear, which means the failure of the ex-husband to appear isn’t necessarily a red flag.)