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Sperm donor loses appeal on child support

The Patriot News, Harrisburg, PA, U.S.A., BY REGGIE SHEFFIELD, Friday, July 23, 2004

The state Superior Court yesterday ruled that a man must pay child support to a woman who conceived twin boys with his sperm through in vitro fertilization.

The opinion upholds a Dauphin County Court order filed in 2002.

Joel L. McKiernan now must pay up to $1,500 each month, but he argued that an oral agreement he had with Ivonne V. Ferguson protected him from any payments, according to court papers.

When McKiernan agreed to be a sperm donor for Ferguson -- a co-worker with whom he had had an affair between 1991 and 1993 -- she promised she would never seek support payments from him, court documents said. But in 1999, she began seeking support.

Superior Court Judge Patrick R. Tamilia wrote that the oral contract between McKiernan and Ferguson is essentially worthless, because the rights for child support belong to the twins, not to either parent.

"The oral agreement between the parties that [McKiernan] would donate his sperm in exchange for being released from any obligation for any child conceived, on its face, constitutes a valid contract," Tamilia wrote in a six-page decision.

"Based on legal, equitable and moral principles, however, it is not enforceable," Tamilia wrote.

Efforts to reach Ferguson and McKiernan were unsuccessful.

According to the court papers, Ferguson persuaded McKiernan to donate his sperm for in vitro fertilization in 1993, when their relationship waned. Ferguson was married, but her husband filed for divorce on the day she underwent the IVF procedure, court papers said.

On Aug. 25, 1994, Ferguson gave birth to the twins. She listed her ex-husband, not McKiernan, as the biological father on the birth certificate, according to court papers.

McKiernan had little contact with Ferguson during this time, other than visiting her in the hospital when she was in labor and spending an afternoon with her and the boys two years later, court documents said.

Elizabeth Stone, a family law attorney, said that Pennsylvania law very clearly holds that the right to child support belongs to the children and not the parents.

"Even though the child is a minor, he cannot in any way extend that right to the parent," Stone said. "So even a contract can be immediately invalidated by running to the court and filing for support."

With in vitro fertilization, a sperm cell and egg cell are combined outside the woman's body, and the resulting embryo is placed in her uterus. About 1 million children have been conceived through in vitro fertilization, which was first done in 1978.

The issue of child support and in vitro fertilization has found its way into court in other jurisdictions.

Copyright 2004 The Patriot-News