Friday, May 11, 2007

Who's Your Daddy -- a Donor?

Reading the York (PA) Dispatch in a Hardees Restaurant on Thursday afternoon, May 10th, I was shocked by a headline: "Court: Sperm donor must pay child support".

The Associated Press article by Mark Scholforo, dated May 10, 2007, was widely reported by the media and is drawing attention nationally to a case that originated in Central Pennsylvania. For other sources online,
see: "Pennsylvania Court Orders Sperm Donor to Lesbian Couple to Pay Child Support", posted by Fox News, and also by MyFoxPhiladelphia here.

The facts of the case are unusual, to say the least: a lesbian couple resident in Pennsylvania, an out-of-state civil union, an alternative live-in lifestyle, a sperm donation by private insemination, child-rearing by a non-traditional unit, the couple's separation, a custody proceeding in one county, child support actions in another county by one partner who retained custody of minor children against two other people having a connection to them, and appeal of both rulings.

The Superior Court decision is Shultz-Jacob v. Jacob & Frampton (No. 1499 MDA, April 30, 2007) (16 PDF, pages), with Judge Kelly writing for a three-judge panel. This is the summary holding:

These unconsolidated appeals lie from two orders, denying respectively Appellant’s complaint, lodged in York County, for sole legal and primary physical custody of the parties' four children, and her motion to join the biological father of two of the children in Dauphin County proceedings to resolve Appellee’s complaint for child support.

We affirm in part and vacate and remand in part, and hold that, in the circumstances of this case, the doctrine of equitable estoppel governs the financial obligation of a sperm donor to support children in whose lives he is involved.
The confusion in the case began with the number & roles of the persons involved:
Beginning in 1996, the parties lived together in York County for approximately nine years, during which period they underwent a commitment ceremony in Pittsburgh, and entered into a civil union in Vermont.

Of the children who are the subjects of these actions, two, A.J. and L.J., are nephews of Appellee’s whom she has adopted. The remaining two, Co.J. and Ca.J., are Appellee’s biological children by Appellee Carl Frampton, a long-time friend of Appellant’s.

At her instigation he agreed to act as sperm donor, and has been involved in the children’s lives since their birth.
The "equitable estoppel" basis for the judicial resolution that the "father" should pay support is based on the particular facts of this case, which go far beyond his limited role as a "sperm donor":
In two basic respects, this case differs from L.S.K. [another precedential case]: First, Appellant does not deny her own responsibility to support the children; rather, her focus is on the omission of any similar obligation assigned to Appellee Frampton, who, if he has not “asserted custodial rights” by petitioning for them, has sought them informally, and has in no way declined the award of custody.

However, L.S.K. provides a matrix in which the critical question in this case arises: if fundamental fairness prevents Appellant, identified by law as a third party, from avoiding a support obligation arising from her status as a de facto parent, and she does not, in any event, attempt such an avoidance, does not the same principle operate similarly to estop Appellee Frampton, automatically recognized as the possessor of parental rights based on his biological parenthood, from disclaiming financial responsibility?

We find that it does. His obligation is, in fact, statutorily imposed as “[p]arents are liable for the support of their children who are unemancipated and 18 years of age or younger.” 23 Pa.C.S.A. § 4321(2).

As the Court in L.S.K. has opined, stepparents who have held a child out as their own are liable for support; biological parents who have exercised the rights appurtenant to that status can be no less bound. Thus the trial court’s conclusion that Appellant’s obligation is established by L.S.K. is not incorrect, only incomplete.

Further, Appellee Frampton has himself anticipated his obligation by providing support to Co.J. and Ca.J. since their births, having contributed “in excess of $13,000” in the last four years, $3,000 of it during the six months preceding the custody trial; and having borrowed money to provide the parties with a vehicle suited to transporting the children.

While these contributions have been voluntary, they evidence a settled intention to demonstrate parental involvement far beyond the merely biological. Further, in addition to having been awarded partial custody, Appellee was present at the birth of Co.J.; has expressed an interest in relocating closer to the children’s home to facilitate both his court ordered monthly partial custody and further contact, which, in fact, already occurs; and has encouraged the children to call him “Papa.”

[Note: I adjusted the text's paragraphing for readability; & omitted transcript citations, page citations, & footnotes.]
Perhaps because the decision was so fact-specific & the situation so unusual, the case appears to produce an unusual result, which the press reported. The article's headline, however, expanded the holding far beyond its peculiar facts & the principles upon which it was decided
A sperm donor who helped a lesbian couple conceive two children is liable for child support under a state appeals-court ruling that a legal expert believes might be the first of its kind. A Superior Court panel last week ordered a Dauphin County judge to establish how much Carl L. Frampton Jr. would have to pay to the birth mother of an 8-year-old boy and 7-year-old girl.

"I'm unaware of any other state appellate court that has found that a child has, simultaneously, three adults who are financially obligated to the child's support and are also entitled to visitation," said New York Law School professor Arthur S. Leonard, an expert on sexuality and the law.

But Frampton, 60, of Indiana, Pa., died suddenly of a stroke in March, leaving lawyers involved in the case with different theories about how his death may affect the precedent-setting case.

The article concludes with these statements:
About two-thirds of states have adopted versions of the Uniform Parentage Act that can shield sperm donors from being forced to assume parenting responsibilities. Pennsylvania has no such law.
I agree, there is a statutory void in Pennsylvania that could be filled by a version of the UPA.

Then, the subsequent death of the "father" highlighted another current statutory void -- the lack (absent specific arrangements) of any obligation of a decedent's estate for continued support of a dependent or previously-supported minor child.

So, n
ow the probate lawyers will join the family lawyers in dealing with these unusual facts.

There are provisions under discussion by separate advisory groups for presentation to the Legislature that could alter statutory law on both issues. However, neither proposal is ready yet for presentation.

In the meanwhile, you can take the informal, online poll being conducted by another newspaper, the York Daily Record, on the much simplified question: "Should a sperm donor pay child support?"

To register your opinion, go to its home page (for as long as the poll is open), and vote. Or you could send an email, asking for more facts before you answer the question.

* * *
Update: 05/13/07:

On the Wills, Trusts & Estates Prof Blog, author-professor Gerry Beyer noted my posting in his own entry, dated May 13, 2007, entitled "Sperm Donor Ordered to Pay Child Support".

Update: 05/14/07:

For other views or comments on this case, see "Court orders sperm donor to pay support -- Death of father complicates complex case", by Paula Reed Ward, published Friday, May 11, 2007, in the Pittsburgh Post-Gazette
* * * [The Jacob case] is an interesting decision for a number of reasons.

First of all, Pennsylvania has no laws that address reproductive issues such as this, which resulted in a first-ever court ruling that recognizes three adults as parents and having financial responsibilities for the same children.

In addition, the sperm donor was not anonymous but a friend of the biological mother, and he eventually sought partial custody of the children.

To further complicate matters, the donor died while the court case was pending. * * *
The article quoted Larry Kalikow, who chairs the Advance Reproductive Technology Committee, of the Joint State Government Commision. I too serve on that Committee. For the past two years, the Committee has worked to draft an acceptable proposal for legislative consideration.
Lawrence Kalikow, a Bucks County lawyer who specializes in reproductive law, said the court's decision in the Jacob case is unusual.

"But in a way, it is very consistent with the way the law is developing in this area," he said.

Mr. Frampton was both a legal and genetic father in this case and had a clear obligation to the children, Mr. Kalikow said.

Even if a man never had any relationship with the children at all, in Pennsylvania, a sperm donor who is not anonymous could still be required to pay support, he said.

That's because the law, as it stands now, is based on a 2004 Superior Court decision.

In that case, the court found that a Mt. Lebanon man who donated sperm to a former girlfriend -- with a promise from her that he would bear no responsibility toward the twins she had -- was required to pay $1,500 a month toward their care.

The case was appealed and was argued before the state Supreme Court on May 17, 2005. It has been pending since then.

Cases like these -- and others involving surrogacy and similar issues -- could more easily be settled, all the lawyers said, if the state Legislature would write laws to address them. Pennsylvania is one of only a handful of states that do not have laws to address the parental rights of sperm donors. * * *

Mr. Kalikow, who chairs the subcommittee on assisted reproductive technologies under the Joint State Government Commission, hopes state lawmakers will soon do that. * * *

To learn more about that prior PA Superior Court decision, which is still on appeal to the PA Supreme Court, see: "Sperm donor fights order to support 2 children", dated May 20, 2005, by Barbara White Stack, also published in the Pittsburgh Post-Gazette.

The PA Superior Court opinion & ruling, issued July 22, 2004, which was appealed to the PA Supreme Court & which therefore remains unresolved finally, is captioned Ferguson v. McKiernan (PDF, 6 pages), 2004 PA Super 289.

Update: 05/25/07:

Subcommittee on Assisted Reproductive Technologies, of the Joint State Government Commission, just issued its Report, dated in May, 2007, entitled "The Proposed Pennsylvania Assisted Reproductive Technologies Act". It contains background, a discussion & summary, and a proposed statute that could become Chapter 59 of Title 23 of Pennsylvania Consolidated Statutes.

For explanation & links, see PA EE&F Law Blog posting
"Assisted Reproductive Tech Act Proposed in PA" (05/25/07).

Update: 05/30/07:

For a Canadian viewpoint on these situations & that nation's legal insufficiencies in dealing with them, see:
"Three parents and a contract", by Hayley Mick, published & posted by the Globe and Mail (Toronto, Canada) on May 29, 2007.

Here are some excerpts from the article:

* * * Advances in reproductive technology and the growing number of same-sex parents are creating a long list of new family forms: two lesbian moms and two gay dads; two dads and a part-time mom, even men and women who met through personal ads for the sole purpose of having a baby.

Non-traditional families have created what many lawyers and human-rights experts say is the next frontier of family law: the legal recognition of families with multiple parents.

Many of these parents aren't waiting for a nod of recognition from the Canadian legal system, which was based on the two-parent, heterosexual family model. Even though the contracts are not legally binding, some parents are drawing up formal agreements that cement details ranging from which parents have primary custody to who has the child during holidays or weekends and who will have custody if one parent - or two - gets sick or dies.

"You end up having to discuss all your motivations," says Mr. Irwin, 40, who is deputy director of scholarships at the Open Society Institute, a foundation that helps to develop democratic civil societies around the world. "You look at it all with a fine-tooth comb."

Judith Stacey, a sociology professor at New York University, has studied many of these contracts in her research. Some start with loving preambles outlining the spirit with which the child was conceived. As much as 30 pages long, some give detailed accounts of financial obligations and how child care will be divided between three, or even four, parents. * * *
They're quite inspirational and moving, often," Ms. Stacey says. "I wish that all parents would think ahead of what it means to become a parent."

Ms. Stacey is one of many legal and social experts who say co-parenting agreements play a valuable role in the formation of non-conventional families, which don't have mainstream models to look to as guides. * * *