A divided Indiana Court of Appeals found that a man who donated sperm can be found to be the father of only one of the two children conceived by artificial insemination.
Mother J.F. and her friend, W.M., entered into a contract in which W.M. would donate his sperm to her to so that she could conceive a child. J.F. was in a long-term same-sex relationship at the time she conceived two children through insemination with sperm from W.M. There was only a contract drawn up when the first-born child, M.F., was conceived. The donor agreement said the father would not be responsible for the child in any way and would have no legal rights to the child.
The mother and her partner broke up when the children were older and mother sought financial assistance. This led to the prosecutor’s office in Fayette County filing a petition to establish paternity on the mother’s behalf. Mother claimed the contract was invalid and ran afoul of public policy.
The trial judge denied the petition to establish the paternity of the children on contract grounds.
In Paternity of M.F., et al.; J.F. v. W.M., No. 21A04-1002-JP-84, Judges Ezra Friedlander and Michael Barnes affirmed that decision in regards to the older child. There is very little caselaw addressing this issue, and they relied on Jhordan v. Mary K., 224 Cal. Rptr. 530 (Cal. Ct. App. 1986), which the Indiana Supreme Court cited in Straub v. B.M.T. by Todd, 645 N.E.2d 597 (Ind. 1994). One key issue upholding a contract between two parties is the involvement of a licensed physician in some way in the insemination. If the child is conceived through intercourse, but there is an agreement between the parties, the contract wouldn’t stand.
In the instant case, the manner in which M.F. was conceived is debated by the parties. The majority determined that the burden to prove the eldest child was conceived by artificial insemination is on the mother based on contract law. Since the judges couldn’t find any indication of the manner in which the mother was inseminated regarding the first pregnancy, she failed to prove that insemination happened in such a way to render the donor agreement unenforceable.
Judge Terry Crone dissented on this issue, arguing that the father must bear the burden as the one trying to avoid his support obligation. He also agreed with the majority that those specific circumstances in which assisted conception contracts might be enforceable must be extremely limited “in order to avoid creating a slippery slope whereby parents could evade their support obligations simply by signing an informal agreement hastily scribbled on a sheet of paper.”
The majority believed their ruling would prevent the possibility of spur-of-the moment, informal contracts absolving a father of any responsibility. First, a physician must be involved in the process of artificial insemination, and the agreement must show the parties’ careful consideration of the implications of such an agreement, wrote Judge Friedlander. The majority declined, however, to define the minimum requirements an agreement must have or endorse a particular contract.
The Court of Appeals judges all agreed that the trial court erred in denying the petition to establish paternity regarding the younger child. They found the contract drawn up before M.F. was born didn’t include C.F. The agreement was mostly specific to M.F., but did make two ambiguous references to “any child.” The judges agreed this language can’t be construed to include future children. They remanded with instructions to grant the mother’s petition to establish paternity with respect to C.F.