That would be parental responsibilities. So this is, in a way, a part of the same discussion that has been going on in the comments to the last post. But this is also different. The press coverage I just linked to is rather confusing so you might prefer to read the reported opinion.
Chukwudera and Blessing Okoli were married. They were unable to conceive a child in the ordinary course of events and so turned to ART. They used IVF with third-party sperm and third-party eggs. To be clear, this meant that neither of the Okolis would be genetically related to any child that was born.
While they were waiting for third-party eggs to become available, the couple separated. That was in November of 2000. When it appeared eggs would be available, Blessing wished to proceed with the process. Chukwudera was reluctant to agree. With the help of a friend, the parties entered into an agreement that provided in part:
“That [the husband] hereby gives his consent for [the wife's] fertility treatment[,][e]mbryo freezing and disposition of eggs, sperm and embryo[.]
“That [the husband] will recognize any offspring from this exercise as previously and mutually agreed to by both parties.
“That since the financial assets of the family [have] been shared, [the husband] does not have any financial obligations with regards to the above exercise and [its] results[.]
“That [the wife] will not at any time ask or sue for any other financial obligation regarding the above exercise and [its] results.”
After the agreement was signed, Chukwudera gave his consent and the IVF proceeded. Twins were born in May 2003.
In the opinion reported here, the Massachusetts Court of Appeals finds that Chukwudera is liable for child support despite the agreement quoted above. While this might seem somewhat surprising (and the result has certainly garnered some critical press) the outcome depends on two propositions, both of which are reasonably well established.
First, the parties did not divorce until 2009 and so at the time of the IVF and the birth, the parties were married. Massachusetts law provides:
”Any child born to a married woman as a result of artificial insemination with the consent of her husband, shall be considered the legitimate child of the mother and such husband.”
G.L. c. 46, § 4B. This is a narrow variant on the marital presumption, designed to assure the legal parenthood of husband’s whose wives use third-party sperm. While you might want to consider for a moment whether this statute–which specifically refers to AI–also covers IVF, it seems to me that it probably does. The point is that the lack of a genetic connection between husband and child is irrelevant. The husband is the legal father.
Second, (and this isn’t really discussed by the court in quite these terms, but I think it looms large in the background) you cannot contract out of child support. That’s a principle of law that is very broadly shared for at least a couple of reasons. For one thing, the party with an interest in the support is the child, and the child isn’t a party to an agreement like this. For a second, your obligation to pay child support isn’t simply a private one. We all have a shared interest in fathers (and more generally, parents) paying child support. Therefore you cannot alter that on your own–even if the other parent agrees.
This second point I just made is so well established that the husband here didn’t even really go that route. He argued instead that his agreement to IVF was conditional and that the conditional agreement wasn’t enough to make him a legal father. If he’s not a legal father he has no child support obligation. You can see that this is an effort at an end round around the idea that you cannot contract out of child support and it’s an unsuccessful one at that.
The court’s discussion is interesting and I think I might come back to it tomorrow. There’s a lot to consider there.
It is easy to think that the husband here has gotten a bit of a bad deal. Let’s assume he really did agree only because he thought he wouldn’t be liable for support–shouldn’t we allow him to rely on that? It’s a fair question. Would you reach a different conclusion if this wasn’t a case involving ART, but if instead the wife got pregnant via intercourse? And if so, why?