The case involves sperm donor Joel L. McKiernan and his lover Ivonne V. Ferguson. Ten years ago, they entered a verbal contract that a three-judge panel of the Superior Court said was valid "on its face." In exchange for McKiernan donating sperm that led to the birth of twins through in-vitro fertilization, Ferguson released him from any obligation toward offspring. (IVF involves fertilizing a woman’s eggs with sperm in a lab dish and, then, placing the fertilized eggs back in the aspiring mother’s uterus.)

Ferguson denies that an agreement to release McKiernan from responsibility ever existed. Nevertheless, she named her then-husband as 'father' on the birth certificate. Five years after the twins' birth and in the wake of divorce, she filed against McKiernan for child support.

The tangled personal circumstances of this situation constitute a legal nightmare and the sort of 'hard' case that makes bad law. And bad law is exactly what may result.

Both the trial court and the Superior Court called Ferguson's actions "despicable" and expressed sympathy toward McKiernan. Yet both found him liable to pay over $1500 a month in child support plus arrearages to the now-divorced Ferguson. (McKiernan has married, moved, and now has two other children he is raising.)

Why was McKiernan considered liable? The original contract was deemed unenforceable due to "legal, equitable and moral principles." The main abrogating principle: biological parents cannot waive the interests of a child -- a third party -- who has an independent 'right' to support from each one of them.

It does not matter that a third party did not exist when the contract was forged and probably would have never existed without the contract. Nor does it matter that the law generally presumes a husband to be the father of any child born during the marriage. The donation of sperm alone makes McKiernan financially liable for the twins until they reach adulthood.

Or it will if he loses the Supreme Court appeal, which weighs the extent of a sperm donor's liability. Presumably, the ruling would equally impact women who donate eggs for another's fertility treatment.

Pennsylvania, like most states, has not adopted a version of the Uniform Parentage Act, which protects sperm or egg donors from the responsibilities of parenthood. Many -- if not most -- donors merely presume that anonymity provides such protection.

In the case of Ferguson v. McKiernan, the identity of the sperm donor was always known. But the principle sustained by the courts could apply with equal force to anonymous donors.

Ferguson's attorney argued that her case did not threaten sperm banks or fertility clinics because such facilities had not been involved. McKiernan's attorney noted that the contract in question was virtually identical to the ones they offer: namely, anonymity or non-involvement in exchange for a donation. If a mother or father cannot waive the 'right' of a potential child to support, then it is not clear how a fertility clinic could do so in its capacity as a broker-for-profit between the two 'parents'.

The danger this precedent would pose was expressed by Arthur Caplan, a professor and medical ethicist at the University of Pennsylvania. Caplan explained that anyone who donates genetic material on the basis of anonymity "ought to understand that their identity could be made known to any child that's produced and they could be seen by the courts as the best place to go to make sure the child has adequate financial support." The prospect become more likely if one parent is requesting support from a government agency.

Sperm banks are legally required to maintain a record of each donor's identity, often indefinitely.

Pennsylvania Supreme Court judge Ronald D. Castille was more blunt than Caplan in his assessment of the risk that donations would cease. "What man in their right mind would agree to that [sperm donation] if we decide this case in your favor? Nobody." What woman in her right mind would donate eggs?

Estimates on infertility in the United States vary but the rate is often placed at about 15 percent, even without including gay and lesbian couples. That is, 15 percent of couples fail to conceive after one year of regular, unprotected intercourse. If miscarriages are factored in, the rate increases.

The use of donated sperm and eggs is a common solution to infertility. According to Dr. Cappy Rothman of the California Cryobank, an estimated 150,000 to 200,000 artificial inseminations occur every year in the U.S. And that is only one form of infertility treatment.

If the Pennsylvania Supreme Court finds the sperm-donor to be liable for child support, then many forms of infertility treatment in most states could become less available and more expensive. Those donors who step forward will want to be compensated for their increased legal risk.

The courts have pitted a child's "best interests" against the rights of biological parents to contract with each other on the terms of reproduction. They may have also opened a Pandora's box of complications involving a child's claim on a sperm donor's data and wealth.

But the worst consequence may be the denial of life itself to children who are desperately wanted by infertile couples. The law should not obstruct their chances of conceiving.

Copyright © 2005 Wendy McElroy.