Ferguson v. McKiernan

OPINION

We are called upon to determine whether a sperm donor involved in a private sperm donation — i.e., one that occurs outside the context of an institutional sperm bank' — effected through clinical rather than sexual means may be held liable for child support, notwithstanding the formation of an agreement between the donor and the donee that she will not hold the donor responsible for supporting the child that results from the arrangement. The lower courts effectively determined that such an agreement, even where bindingly formed, was unenforceable as a matter of law. Faced with this question of first impression in an area of law with profound importance for hundreds, perhaps thousands of Pennsylvania families, we disagree with the lower courts that the agreement in question is unenforceable. Accordingly, we reverse.

Former paramours Joel McKiernan (Sperm Donor) and Ivonne Ferguson (Mother) agreed that Sperm Donor would furnish his sperm in an arrangement that, by design, would feature all the hallmarks of an anonymous sperm donation: it would be carried out in a clinical setting; Sperm Donor’s role in the conception would remain confidential; and neither would Sperm Donor seek visitation nor would Mother demand from him any support, financial or otherwise. At no time *82prior to conception, during Mother’s pregnancy, or after the birth of the resultant twins did either party behave inconsistently with this agreement, until approximately five years after the twins’ birth, when Mother filed a motion seeking child support from Sperm Donor. The trial court, recognizing the terms of the agreement outlined above and expressing dismay at what it found to be Mother’s dishonest behavior, nevertheless found that the best interests of the twins rendered the agreement unenforceable as contrary to public policy. Thus, the court entered a support order against Sperm Donor, which the Superior Court affirmed.

The trial court found, and the record supports,2 the following account of the events leading up to this litigation. Sperm Donor met Mother in May 1991, when he began his employment with Pennsylvania Blue Shield, where Mother also worked. At that time, Mother was married to and living •with Paul Ferguson (Husband), although whether their sexual relations continued at that point is subject to dispute. Mother was raising two children she had conceived with Husband, while he provided little if any emotional or financial support.

Later that year, Sperm Donor’s and Mother’s friendly relations turned intimate, and in or around November 1991 their relationship took on a sexual aspect. Mother assured Sperm Donor that she was using birth control, and the couple did not use condoms. Although Mother variously indicated to Sperm Donor that she was taking birth control pills or using injectable or implanted birth control, in fact she had undergone tubal ligation surgery in or around 1982, following the birth of her second child by Husband.

The parties continued their intimate relationship until some time in 1993, maintaining separate residences but seeing each other frequently. On more than one occasion during that span, they “broke up,” only to reconcile after brief hiatuses. During the summer of 1993, however, their relationship began to flag.

*83Early that year, Mother had consulted a physician regarding the feasibility of reversing her tubal ligation to enable her to conceive another child. In September 1993, after learning that her tubal ligation was irreversible,3 Mother approached physician William Dodson at Hershey Medical Center, to discuss alternative methods of conception, specifically in vitro fertilization (IVF) using donor sperm followed by implantation of the fertilized eggs. Mother did not inform Sperm Donor of either consultation, and continued to mislead him by referring to one or more alternative methods of contraception she claimed to be using or considering using.

Toward the end of 1993, the parties’ relationship had changed in character from an intimate sexual relationship to a friendship without the sexual component. At about that time, late in 1993, Mother broached the topic of bearing Sperm Donor’s child. Even though Mother biologically was incapable of conceiving via intercourse due to her irreversible tubal ligation, and notwithstanding that the parties were no longer in a sexual relationship, she inexplicably suggested first that they conceive sexually. Sperm Donor, evidently unaware that the point was moot, refused. He made clear that he did not envision marrying Mother, and thus did not wish to bear a child with her.

Revising her approach, Mother then suggested that Sperm Donor furnish her with his sperm for purposes of IVF. Initially, Sperm Donor expressed his reluctance to do so. He relented, however, once Mother convinced him that she would release him from any of the financial burdens associated with conventional paternity; that she was up to the task of raising an additional child in a single-parent household and had the financial wherewithal to do so; and that, were he not to furnish his own sperm, she would seek the sperm of an anonymous donor instead.4

*84To that end, Mother continued her consultations with Dr. Dobson at Hershey Medical Center, at least once visiting Dr. Dobson with á male companion. Although the evidence is heavily disputed in this regard, the trial court found that representations were made to Dr. Dobson that the man accompanying Mother was Husband.5 The trial court further found that Sperm Donor was not aware of these preliminary consultations. Moreover, most paperwork pertaining to the procedure was completed without Sperm Donor’s knowledge or participation, an aspect of the case the trial court found reflective of Mother’s “latent subterfuge.”

On February 14, 1994, Sperm Donor traveled to Hershey Medical Center to provide a sperm sample.6 This sample was used, in turn, to fertilize Mother’s eggs, which then were implanted. The procedure succeeded, enabling Mother to become pregnant. Sperm Donor in no way subsidized the IYF procedure.

During Mother’s pregnancy, Sperm Donor and Mother remained friends, visited regularly, and spoke frequently on the phone, although as noted their relationship was no longer sexual or romantic in character. The trial court found, however, that Sperm Donor attended none of Mother’s prenatal examinations and did not pay any portion of Mother’s prenatal expenses. Although both parties made an effort to preserve Sperm Donor’s anonymity as the source of the sperm donation during the pregnancy, Mother admitted the truth to Sperm Donor’s brother when he asked whether Sperm Donor was the father. Sperm Donor also admitted his own role in Mother’s pregnancy to his parents when they confronted him, following their receipt of anonymous phone calls insinuating as much.

*85In August 1994, Mother went into labor prematurely. “In a panic,” as the trial court characterized it, Mother contacted Sperm Donor and asked him to attend the birth. Believing that she had no one else to turn to, Sperm Donor joined Mother in the hospital. Even during the birth on August 25, 1994, however, Sperm Donor maintained his anonymity regarding his biological role in the pregnancy, an effort Mother affirmatively supported when she named Husband as the father on the twins’ birth certificates, and reinforced by the fact that Sperm Donor neither was asked, nor offered, to contribute to the costs associated with Mother’s delivery of the twins.

Regarding Sperm Donor’s and Mother’s post-partum interactions, the trial court found that,

[a]fter the twins were born, [Sperm Donor] saw [Mother] and the boys on a few occasions in the hospital. Approximately two years after the births, [Sperm Donor] spent an afternoon with [Mother] and the twins while visiting his parents in Harrisburg.[7] [Sperm Donor] never provided the children with financial support or gifts, nor did he assume any parental identity. [Sperm Donor] had no further contact with either [Mother] or the children until May 1999 when [Mother] randomly obtained [Sperm Donor’s] phone number[8] and subsequently filed for child support.

Ferguson v. McKiernan, 60 Pa. D. & C.4th 353, 358 (Dauphin Cty.2002) (citations omitted).

In the years after Mother gave birth to the twins and before Mother sought child support, Sperm Donor moved to Pittsburgh, met his future wife, married her, and had a child with her. Indeed, Sperm Donor’s wile was pregnant with their second child when she testified in the trial court in these proceedings.

*86Based on this recitation of facts, the trial court found that the parties had formed a binding oral agreement prior to the twins’ conception pursuant to which Sperm Donor would provide Mother with his sperm and surrender any rights and privileges to the children arising from his biological paternity in return for being released of any attendant support obligation. The parties further agreed to keep secret Sperm Donor’s genetic connection to the twins. The trial court found ample evidence of the parties’ intention in this regard, and determined that Sperm Donor’s provision of sperm and Mother’s agreement to forego any right to seek financial support from Sperm Donor constituted valid consideration as a matter of law, rendering the agreement a binding contract specifying the parties’ rights and obligations.

The trial court reached this conclusion based on its determination that, “by virtue of the attendant testimony and evidence,” Sperm Donor’s testimony was more credible than the competing account offered by Mother. Id. at 359. “[Sperm Donor’s] testimony was consistent throughout the Court’s proceedings, whereas [Mother’s] testimony contained numerous inconsistencies and contradictions, not to mention intentional falsehoods, fraud, and deceit involving not only [Sperm Donor] but the hospital as well.” Id. at 359-60. The trial court reinforced its point by highlighting numerous irregularities in Mother’s testimony. Id. at 360-63.

The court nevertheless found the agreement unenforceable. Citing the Superior Court’s holding in Kesler v. Weniger, 744 A.2d 794, 796 (Pa.Super.2000), that “a parent cannot bind a child or bargain away that child’s right to support,” the court found its discretion restrained.

[T]his Court cannot ignore and callously disregard the interests of the unheard-from third party[,] a party who without their privity to this contract renders it void. No other party, albeit a parent, can bargain away a child’s support rights. Although we find the Plaintiffs actions despicable and give [sic ] the Defendant a sympathetic hue, it is the interest of the children we hold most dear. Accordingly, we hold that the Defendant’s appeal from the Dau*87phin Comity Domestic Relations’ determinations is denied, the Defendant is the legal father of the twins, and he is obligated to pay child support to the Plaintiff.

Ferguson, 60 Pa. D. & C.4th at 364. Relying on the support guidelines, based on Mother’s monthly net income of $1947.61 and Sperm Donor’s monthly net income of $5262.30, the court imposed on Sperm Donor an ongoing support obligation of $1384 per month effective retroactively to January 1, 2001, with a corresponding arrear of $66,033.66 due immediately upon issuance of the order.

A panel of the Superior Court affirmed the trial court’s ruling in a unanimous opinion that echoed the trial court’s ruling. See Ferguson v. McKiernan, 855 A.2d 121 (Pa.Super.2004). The Superior Court began with the premise that “[t]he oral agreement between the parties that appellant would donate his sperm in exchange for being released from any obligation for any child conceived, on its face, constitutes a valid contract.” Id. at 123.9 Like the trial court, however, the *88Superior Court found the agreement so formed to be unenforceable as against public policy, and rejected Sperm Donor’s contract- and estoppel-based arguments. “Due to the fact the contract between appellee and appellant bargained away a legal right not held by either of them, ... but belonging to the subject children, the contract was not enforceable.” Id. at 124 (citing Kesler, 744 A.2d 794).

Against this background, in which both of the lower courts found an agreement sufficiently mutual and clear to be binding, the lone question we face is as simple to state as it is vexing to answer. We must determine whether a would-be mother and a willing sperm donor can enter into an enforceable agreement under which the donor provides sperm in a clinical setting for IVF and relinquishes his right to visitation with the resultant child(ren) in return for the mother’s agreement not to seek child support from the donor. In considering this pure question of law, our standard of review is de novo and the scope of our review is plenary. See Pennsylvania Nat. Mut. Cas. Co. v. Black, 591 Pa. 221, 916 A.2d 569, 578 (2007). We begin by reviewing the thorough arguments presented by the parties.

Sperm Donor argues first that Pennsylvania law and public policy precluding parents from bargaining away a child’s entitlement to child support should not preclude enforcement of an otherwise binding contract where the bargain in question occurs prior to, and indeed induces, the donation of sperm for IVF and implantation in a clinical setting. Sperm Donor urges this Court to hold that the fact that the agreement was formed months prior to conception distinguishes this case from precedent preventing parents from bargaining away a child in being’s right to seek child support. See, e.g., Knorr v. Knorr, 527 Pa. 83, 588 A.2d 503, 505 (1991)(holding that, while “Parties to a divorce action may bargain between themselves and structure their agreement as best serves their interests,” they may not bargain away the rights of their children to support). Sperm Donor emphasizes that he provided his *89sperm to Mother contingent on her promise not to seek child support in the future — that the promise was, in effect, a “but for” cause of the twins’ conception and birth. Sperm Donor maintains that his and Mother’s shared intention “was to cloak [their] agreement in the same legal protections that an anonymous sperm donor enjoys,” and that “people should be free to enter into these agreements, in the interest of allowing people access to greater ... options concerning the areas of reproduction.” Brief for Appellant at 16.

Sperm Donor contends that to uphold the Superior Court’s ruling will call into question the legal status of all sperm donors, including those who donate anonymously through sperm banks. Sperm Donor buttresses his argument by reference to the Uniform Parentage Act (UPA), a proposed uniform law originally promulgated in 1973 by the American Bar Association and adopted, in some form, by at least nineteen states.10 Sperm Donor observes that the UPA, which he acknowledges has not been adopted by this Commonwealth, does not require anonymity in the sperm donor context to protect the donor from subsequent parental responsibility and the child and parent from a donor’s subsequent claim of parental privileges. Rather, the UPA provides unequivocally that “A donor is not a parent of a child conceived by means of assisted reproduction.” UPA § 702. The Comment to § 702 elaborates: “The donor can neither sue to establish parental rights, nor be sued and required to support the resulting child. In sum, donors are eliminated from the parental equation.” *90UPA § 702 Cmt. (emphasis added).11 Sperm Donor argues that the Commonwealth should not concern itself with the question of anonymity if the parties to the agreement themselves are not concerned. Sperm Donor also argues that an absolute holding of parental responsibility in this case threatens other contract-based alternative reproductive arrangements, such as adoption and institutional sperm donation, since the lower court rulings both plausibly may be read to hold that any contract denying a child the support of any biological parent necessarily violates public policy.

Mother, conversely, argues that this Court should uphold the lower courts’ rulings that the best interests of the child preclude enforcement of the parties’ contract, contending that “there is no basis for making an exception [to the best interests approach] merely because the children at issue were conceived in a clinical setting and the agreement was made prior to their conception.” Brief for Appellee at 8. She argues that if this Court rules otherwise, it will act impermissibly in place of the General Assembly and contrarily to 28 Pa.C.S. § 5102,12 which “mandates that without exception” all children shall be “legitimate” without regard to the marital status of their parents, and that children born out of wedlock shall enjoy all rights and privileges of children born to married parents. Brief for Appellee at 8.

*91Mother rejects Sperm Donor’s reliance on UPA § 702, emphasizing that for over thirty years the General Assembly has failed to adopt the model act. The twins, Mother argues, are Sperm Donor’s offspring pursuant to § 5102, and have the same right to his support they would have if Sperm Donor and Mother had conceived by sexual intercourse. Mother observes that the General Assembly, beginning in 1975, repeatedly has considered bills purporting to elaborate on the legal relationships spawned by reproductive alternatives, but none has made it out of committee.13 Mother argues that the General Assembly’s failure to enact these bills signals its “unwillingness ... to adopt the UPA provision which ... eliminates all sperm donors (except the spouse of the donee) from the ‘parental equation.’” Brief for Appellee at 10.

To reinforce her argument that this Court should decline to act in the absence of legislative guidance, Mother cites Benson ex rel. Patterson v. Patterson, 574 Pa. 346, 830 A.2d 966 (2003), in which this Court declined to impose a continuing support obligation against a deceased parent’s estate. There, this Court observed that “it is not the role of the judiciary to legislate changes in the law which our legislature has declined to adopt.” Id. at 967 (internal quotation marks omitted). In declining to impose a continuing support obligation on decedent’s estate, we noted the then recent expansion of the duty of parents to support their minor children, see generally 23 Pa.C.S. § 4321 (“Liability for support”), coupled to the legislature’s omission “to extend the duty of support to the estates of deceased parents,” either “directly or inferentially,” and concluded that we would exceed our authority to do so in lieu of the legislature. Patterson, 830 A.2d at 967-68. Mother maintains that to rule in favor of Sperm Donor would amount to judicial legislation of “that which the General Assembly has declined to enact,” in violation of the institutional restraint *92animating our decision in Patterson. Brief for Appellee at 10-11.14

Mother’s argument, for all its nuance, effectively relies on the same background principle that the lower courts found dispositive: that even mutually entered and otherwise valid contracts are unenforceable when the contracts violate clear public policy15 — in this case, the Commonwealth’s oft-stated 'policy not to permit parents to bargain away their child’s right to support. Notably, neither the courts below nor Mother undertake the rigorous analysis called for by our caselaw governing the enforceability of contracts supposed to violate public policy,16 relying instead on a tenuous analogy between the instant circumstances and those of divorce or *93other parenting arrangements arising in the context of sexual relationships.

This analogy, however, is unsustainable in the face of the evolving role played by alternative reproductive technologies in contemporary American society. It derives no authority from apposite Pennsylvania law, and it violates the commonsense distinction between reproduction via sexual intercourse and the non-sexual clinical options for conception that are increasingly common in the modern reproductive environment. The inescapable reality is that all manner of arrangements involving the donation of sperm or eggs abound in contemporary society, many of them couched in contracts or agreements of varying degrees of formality. See UPA Art. 7. Prefatory Cmt. (outlining the various reproductive alternatives available to parties seeking to raise children). An increasing number of would-be mothers who find themselves either unable or unwilling to conceive and raise children in the context of marriage are turning to donor arrangements to enable them to enjoy the privilege of raising a child or children, a development neither our citizens nor their General Assembly have chosen to proscribe despite its growing pervasiveness.17

Of direct relevance to the instant case, women, single and otherwise, increasingly turn to anonymous sperm donors to enable them to conceive either in vitro or through artificial insemination. In these arrangements, the anonymous donor and the donee respectively enter into separate contracts with a sperm bank prior to conception and implantation of an embryo or embryos. The contract releases the mother from any obligation to afford the sperm donor a father’s access to *94the child for visitation or custody while releasing the donor from any obligation to support the child.18

Thus, two potential cases at the extremes of an increasingly complicated continuum present themselves: dissolution of a relationship (or a mere sexual encounter) that produces a child via intercourse, which requires both parents to provide support; and an anonymous sperm donation, absent sex, resulting in the birth of a child. These opposed extremes produce two distinct views that we believe to be self-evident. In the ease of traditional sexual reproduction, there simply is no question that the parties to any resultant conception and birth may not contract between themselves to deny the child the support he or she requires. See, e.g., Knorr, 588 A.2d at 505 (“[Parent’s] right to bargain for themselves is their own business. They cannot in that process set a standard that will leave their children short.”); Kesler, 744 A.2d at 796 (same). In the institutional sperm donation case, however, there appears to be a growing consensus that clinical, institutional sperm donation neither imposes obligations nor confers privileges upon the sperm donor.19 Between these poles lies a spectrum of arrangements that exhibit characteristics of each extreme to varying degrees — informal agreements between friends to conceive a child via sexual intercourse; non-clinical non-sexual insemination; and so on.

Although locating future cases on this spectrum may call upon courts to draw very fine lines, courts are no strangers to such tasks, and the instant case, which we must resolve, is not nearly so difficult. The facts of this case, as found by the trial *95court and supported by the record, reveal the parties’ mutual intention to preserve all of the trappings of a conventional sperm donation, including formation of a binding agreement. Indeed, the parties could have done little more than they did to imbue the transaction with the hallmarks of institutional, non-sexual conception by sperm donation and 1VF. They negotiated an agreement outside the context of a romantic relationship; they agreed to terms; they sought clinical assistance to effectuate 1VF and implantation of the consequent embryos, taking sexual intercourse out of the equation;20 they attempted to hide Sperm Donor’s paternity from medical personnel, friends, and family; and for approximately five years following the birth of the twins both parties behaved in every regard consistently with the intentions they expressed at the outset of their arrangement, Sperm Donor not seeking to serve as a father to the twins, and Mother not demanding his support, financial or otherwise. That Mother knew Sperm Donor’s identity, the parties failed to preserve Sperm Donor’s anonymity from a handful of family members who were well acquainted with Sperm Donor and Mother alike, and Mother acted on her preference to know the identity of her sperm donor by voluntarily declining to avail herself of the services of a company that matches anonymous donors with willing mothers, reveal no obvious basis for analyzing this case any differently than we would a case involving an institutionally arranged sperm donation.

Assuming that we do not wish to disturb the lives of the many extant parties to anonymous, institutional sperm donation, we can only rule in Mother’s favor if we are able to draw a legally sustainable distinction between the negotiated, clinical arrangement that closely mimics the trappings of anonymous sperm donation that the trial court found to have existed in this case and institutional sperm donation, itself. Where such a distinction hinges on something as trivial as the parties’ success in preserving the anonymity they took substantial *96steps to ensure, however, we can discern no principled basis for such a distinction.21

Moreover, even if, arguendo, such a distinction were tenable, it would mean that a woman who wishes to have a baby but is unable to conceive through intercourse could not seek sperm from a man she knows and admires, while assuring him that he will never be subject to a support order and being herself assured that he will never be able to seek custody of the child. Accordingly, to protect herself and the sperm donor, that would-be mother would have no choice but to resort to anonymous donation or abandon her desire to be a biological mother, notwithstanding her considered personal preference to conceive using the sperm of someone familiar, whose background, traits, and medical history are not shrouded in mystery. To much the same end, where a would-be donor cannot trust that he is safe from a future support action, he will be considerably less likely to provide his sperm to a *97friend or acquaintance who asks, significantly limiting a would-be mother’s reproductive prerogatives.22 There is simply no basis in law or policy to impose such an unpleasant choice, and to do so would be to legislate in precisely the way Mother notes this Court has no business doing.

Moreover, we cannot agree with the lower courts that the agreement here at issue is contrary to the sort of manifest, widespread public policy that generally animates the courts’ determination that a contract is unenforceable. The absence of a legislative mandate coupled to the constantly evolving science of reproductive technology and the other considerations highlighted above illustrate the very opposite of unanimity with regard to the legal relationships arising from sperm donation, whether anonymous or otherwise. This undermines any suggestion that the agreement at issue violates a “dominant public policy” or “obvious ethical or moral standards,” Hall v. Amica Mut. Ins. Co., 538 Pa. 337, 648 A.2d 755, 760 (1994), demonstrating a “virtual unanimity of opinion,” Mamlin v. Genoe, 340 Pa. 320, 17 A.2d 407, 409 (1941), see generally supra n. 16, sufficient to warrant the invalidation of an otherwise binding agreement.

This Court takes very seriously the best interests of the children of this Commonwealth, and we recognize that to rule in favor of Sperm Donor in this case denies a source of support to two children who did not ask to be born into this situation. Absent the parties’ agreement, however, the twins would not have been born at all, or would have been born to a different and anonymous sperm donor, who neither party disputes would be safe from a support order. Further, we cannot simply disregard the plight of Sperm Donor’s marital child, who also did not ask to be born into this situation, but whose interests would suffer under the trial court’s order.23

*98The parties in this case agreed to an arrangement that to all appearances was to resemble — and in large part did resemble for approximately five years — a single-parent arrangement effectuated through the use of donor sperm secured from a sperm bank. Under these peculiar circumstances, and in considering as we must the broader implications of issuing a precedent of tremendous consequence to untold numbers of Pennsylvanians, we can discern no tenable basis to uphold the trial court’s support order. Rather, we hold that the agreement found by the trial court to have been bindingly formed, which the trial court deemed nevertheless unenforceable is, in fact, enforceable.

Because we hold that the parties’ agreement not to seek visitation or support is enforceable in this case, we reverse the Superior Court’s order affirming the trial court’s support order, and remand for further action consistent with this Opinion.