> I've never heard of a sperm donor being hit with
>child support.
Now you have. Here are two different cases:
http://www.theage.com.au/cgi-bin/common/popupPrintArticle.pl?path=/articles/2003/07/11/1057783356093.html
Sperm donor must pay child support, court rules
By Susan Murdoch
July 12 2003
A man who donated sperm the "old fashioned way" to a lesbian couple, but was then forced to pay child support, highlighted the need for lesbians to have access to anonymous donors, a gay rights activist said yesterday.
The Family Court found that because the child was conceived through sexual intercourse and not artificial means, the Victorian man should pay maintenance.
Family Court judge Joseph Kay said the man was liable despite an initial agreement with the lesbian couple that precluded him from any parental right of access and excluded any financial responsibility.
In his reasons for judgement, Justice Kay said: ". . . especially where conception was 'in the usual and customary manner,' the biological parent is the parent at law".
Gay rights activist Ray Croome said the case highlighted the need for uniform laws across all states and territories allowing lesbian women access to anonymous sperm donation. "If lesbian women could access anonymous sperm donation in Victoria, it wouldn't create these legal problems," he said.
The court heard that the biological parents of the child had once been a couple, but the woman later ended the relationship and entered another with a woman.
The woman, known only as BM, later asked the man, identified as ND, to help the female couple conceive.
ND had sex with BM in the presence of her partner and the three later made a written agreement that he would have no legal rights to the child.
Men's Rights Agency director Sue Price said the decision could deter men from donating sperm. "What should be relevant is the intention of the parties," Ms Price said.
"We have three adults making a decision - whether you think it's right or wrong - in reality it goes on. So, do we say to these adults well 'I'm sorry you can't make those decisions by yourself and we're now going to look for the man in the trio to pay for the support of the child."
Justice Kay upheld an earlier decision by a magistrates court that ordered ND be assessed to pay child support, a process that must be undertaken before family benefits can be paid.
Counsel for ND, David Schetzer, said the man did not wish to comment.
- AAP
This story was found at:
http://www.theage.com.au/articles/2003/07/11/1057783356093.html
Second case:Dad Ordered to Support Donor Sperm Quads
http://www.fathersforlife.org/fatherhood/estoppel.htm--------------------------------------------------------------------------------
With unilateral reproductive "choice" comes unilateral responsibility. But since the unspoken principle here is that women are not to be held competent for their individual choices for what they do with their bodies, then if anyone should pay child support it should be the sperm donor and/or the clinic/doctor whose actions caused this obligation for the unwilling father. Fathers should be allowed to sue these people and any laws that provide a shield should be ruled unconstitutional.
However, if a marriage holds a man responsible for his spouse's choices, he then should have equivalent rights to those choices. In other words, marriage or no, individuals should be held responsible for their unilateral actions. Equality under the law. No exceptions.
-lenny
Dad Ordered to Support
Donor Sperm Quads
Judge says biology not an issue
By Lori Litchman
Pennsylvania Law Weekly
Monday, March 15, 1999
Acting as a father lends more weight than actually supplying the sperm to create the child, a Monroe County Common Pleas Court judge has ruled, giving a boost to supporters of Pennsylvania's widely debated presumption of paternity doctrine.
In Turczyn v. Turczyn, PICS Case No. 99-0424, Monroe County Common Pleas Court Judge Edward D. Reibman ruled that a woman who gave birth to quadruplets she conceived with donor sperm through artificial insemination without her husband's knowledge or consent has the right to child support. "Husband is precluded from denying his parental responsibilities to the quadruplets," wrote Reibman. "The quadruplets were conceived and born during the marriage. Husband presented no evidence to conclude he either had no access to wife or was physically incapable of procreation at the time of conceptions."
Reibman also said paternity by estoppel applied to the case, saying that the husband asked for his name to be on the birth certificates of the babies and provided financial support to the children for the first several months of their lives.
"It is not enough to say, as husband does now, that he is not the biological father of the quadruplets and, therefore, has no obligation to support them," wrote Reibman. "The doctrine of estoppel was created so that regardless of biology, the person who has cared for the child is the parent."
MARRIAGE OF SEPARATIONS
According to the opinion, from the time they were married in 1991, the marriage between Debbie Turczyn and Michael Turczyn was riddled with arguments, protection from abuse orders and separations.
The husband had two children from a previous marriage and before the Turczyns got married, the couple decided they wanted to have children together. The wife underwent several rounds of fertility treatments, all ending in failed attempts at pregnancy.
The husband paid for all of these fertility treatments. After the failed attempts, they decided in November 1996 to try another round of fertility treatments. During the procedure, the couple had an argument and separated. At this time, the husband asked for a divorce and told the fertility doctor there would be no more treatments.
The same day the husband asked for a divorce, the wife found out she had 10 eggs, the best response to all of the fertility treatments she had undergone.
"At this point, wife was 39 years old. She felt she had been taking care of husband's children for seven years and wanted children of her own," wrote Reibman. "She concluded this would be her last chance to become pregnant. She went to the fertility doctor on Nov. 18, 1996, and told him she wanted to proceed with the procedure despite Husband's objections and asked to use donor sperm."
The husband did not have any knowledge of this procedure and did not give consent.
In the beginning of December the wife found out that she was pregnant. By the middle of the month, the couple had reconciled.
At this point the husband said he wanted his wife to undergo more fertility treatments to have children. The wife then told him she was already pregnant from donor sperm.
The husband then said he would treat the child as his own and when the couple found out that there were four embryos, jointly decided against selective reduction.
When the children were born, the husband said he wanted his name on their birth certificates, named two of the babies and gave the children his last name.
Because the children were born prematurely, they had an extended hospital stay. The husband paid for all the medical bills.
The children came home from the hospital and the husband remained at the home until March 15, 1998 when the couple had an argument, ending in the wife filing for a protection from abuse order and a divorce.
THE COURTS
The issues surrounding the presumption of paternity have been widely debated around the state for some time, primarily over whether biology or behavior should have a bigger role legally defining the nature of being a father.
Most recently, in Miscovich v. Miscovich PICS Case No. 97-0083, the Supreme Court affirmed a lower court ruling that said DNA test results that proved the defendant was not the father could not be used as evidence.
The court's decision, however, was an evenly split decision. Justice Thomas Saylor did not participate in the opinion.
Two other cases of significance -- Strauser v. Stahr, PICS Case No. 97-2664, and Fish v. Behers, PICS Case No. 97-0331 Tamilia, J.; Cirillo, J., concurring; Eakin, J. concurring in result; Johnson, J. dissenting; Schiller and Kelly, J.J., dissenting; Ford Elliot, J., dissenting (61 pages) -- currently before the Supreme Court now could set guidelines for determining the factors of fatherhood for the court.
RESOLUTION
In Turczyn the judge cited Brinkley v. King, PICS Case No. 97-1991 Flaherty, C.J.; Nigro, J., concurring and dissenting; Newman and Castille, J.J., concurring and dissenting; Zappala, J., concurring (37 pages), to support the finding that the Turczyn should pay child support to his wife.
In Brinkley, the Supreme Court said: "If a certain person has acted as the parent and bonded with the child, the child should not be required to suffer the potentially damaging trauma that may come from being told that the father he has known all his life is not in fact his father."
The court said because Turczyn acted as the father, under paternity by estoppel, the father could not deny his parental responsibilities.
"He held himself out to the public as the father of the quadruplets," wrote Reibman. "Indeed, from the time wife told husband of the circumstances of her pregnancy, during the ensuing pregnancy and for the first eight and one-half months of the quadruplets' lives, it is hard to imagine what else an approving, supportive, nurturing and bonding father could provide to the quadruplets."
But Reibman also admitted that it was unclear to him whether the presumption of paternity could be rigidly applied in Turczyn.
"Is this the type of 'functioning marital unit' the presumption was designed to bolster? Can it be said that history will not repeat itself and, in this case, the parties current separation is but a monetary [sic] spat in a relationship in which instability and multiple separations and reconciliations are the norms as sure as night follows day? Perhaps that is the problem with anything short of either a rigid application of the presumption or a complete abandonment of it."
Regardless of the confusion, the judge did rule that the presumption applied because the quadruplets were born during the course of the marriage and the husband could not prove he was unable to procreate.
ISSUE FOR APPEAL
The husband's lawyer, John Karoly Jr., of the Allentown firm, Karoly Law Offices P.C., said he is waiting to see if he can file a direct appeal to the state Supreme Court.
Karoly said the direct appeal would be most effective for him and his client because he thinks this is a case of first impression that has statewide implications.
He argued that the presumption of paternity was not a debatable issue in this case. The husband's lawyer, James L. Heidecker Jr., could not be reached for comment.
"The reason why this statute doesn't apply is because we weren't seeking a determination of paternity," said Karoly. "We know who the father is. In this case, there was no paternity determination requested . . . yet the court invoked the presumption of paternity. We think it is a terribly wrong decision by a good judge."
Karoly said he hopes this case will push the Supreme Court to make the determination that biological fatherhood is the sole determination of support.
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Notes:
estop: to impede by estoppel
estoppel: a legal bar to alleging or denying a fact because of one's own previous actions or words to the contrary
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Topic: LOL! Who will they go after for child support? (Read 658 times)