The Other Side Of Parental Rights

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?





6 responses to “The Other Side Of Parental Rights

  1. Where you said that people cannot contract out of child support. I love that. I want the whole world to live by that. I want there to be no exceptions to that. Unless someone prevented you from knowing about your child or thwarted your efforts to provide support to your child avoiding a support obligation should be considered a crime punishable by having to support your child. For people who cannot or do not wish o raise their children there should be a formal way to transfer that obligation to support their minor children and with that obligation to suppor their minor children should go the right to make decisions on their behalf. I do not think however that the identity of the child should be changed nor do I think the legal parent child relationship should ever stop being recognized because any future children of their parents should be recognized as their siblings they should always be recognized as a full fledged member entitled to inherit etc from their parents. The child should not loose what few benefits remain when their parents are unable to raise them. They should be able to retain their family membership while being taken care of by adoptive parents who get all the authority and can name the child in their will if they want. The childs identity should not be split.

    Unfortunately it does not work that way people contract out of their support obligations all the time look at the release forms signed by sperm and egg donors. Those forms absolutely include clauses about them relinquishing their parental rights and support obligations being taken over by whoever ends up raising their offspring. Look at surrogacy contracts like with traditional surrogates where really she’s just a mother giving her child up for adoption, her planned child with a man who happens to be not with her romantically.

    Look at all the examples where our stupid freaking laws let people who really are parents get off scott free abandoning their offspring and this guy who is not related to this child is on the hook. Its so upside down its absurd. But I do think his hands are dirty just as his wife’s are. The people who owe this child their support abandoned their offspring at birth and their contracts are in the file of some doctor somewhere and the law allows the doctor to aid and abet them in the abandonment of their offspring, and allows the consumers to aid and abet them in the abandonment of their offspring. What that child deserves is to go home to her family and have them take care of her not these people who purchased her and tried to contract in and out of having to pay to raise her. What kind of person would pay to put a child together anyway? Its all very much like Dr. Frankenstein to me. Taking other people’s parts to make yourself a child.

  2. I have to wonder why they took 9 years to divorce once they separated? I wonder why the husband didn’t just tell her to wait til they were divorced and ensure there was no risk. His behavior seems pretty foolish…

  3. what about plain old contract law?
    I understand that there are certain illegal clauses to a contract that if included, would cause the entire contract to be invalidated.
    presumeably the husband here is arguing that it’s that sort of clause

    I am not sure what is the criteria for a clause that would invalidate the whole contract or only the particular clause itself.

  4. This is Canada’s version of this decision: Jane Doe v Alberta, with similar result. 2007 ABCA 50
    Leave to appeal to the Supreme Court of Canada was denied.

    These cases do raise the question of which parents/how many parents are liable for child support. Some Canadian feminists have questioned the increasing tendency to ‘privatize’ financial obligations to support children by expanding the category of ‘parent’. The result is that the state/the public is left off the hook for supporting children and families in need, and women often remain tied to their ex-partners, even if their former relationship was, say, abusive.

  5. If he was so concerned about his child support obligations, why did he allow a family friend to draft this agreement? Why didn’t he seek expert, independent legal advice? I simply can’t fathom why people enter into complex arrangements without obtaining legal advice.

    When I entered into a prenup, my attorney discussed children and what could and couldn’t be legally stipulated. For example, neither of us could waive child support claims. We could (and did) stipulate that if we separated whoever became the primary custodial parent could retain the kids’ belongings in their home. (We didn’t want to find ourselves arguing over who would take possession of the kids’ furniture.) Just from meeting with an attorney to arrange my prenup, I learned about not being able to waive child support claims. So much trouble and heartache could be avoided if people would seek out legal advice before entering into complex situations, such as parenthood or marriage/marriage-like arrangements.

  6. Parental rights can be waived, but not contracted out of here in the state of Arkansas. The custodial parent (CP) can ask the Non-custodial parent (NCP) to waive their rights as a parent, which will not include the right to pay child support. This allows for the CP to marry and after how ever many years the state calls for, the current spouse can file for adoption. This allows for the adoption to go forward without any impediments from the biological NCP.

    In the case of Chuk and Blessing: The financial cost that went into the process prior to IVF was assumed by both. Because of this, the babies that were produced by the procedure are the financial obligation of both persons. As for the contract, its BS. He can’t say “Yeah she is allowed to have kids that we paid to have put in her, but I ain’t going to do anything to help support them. They were ‘conceived’ after we separated and divided the shared property between the two of us. They ain’t mine no more!”

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