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June 21, 2009


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So whether you're dependent on a parent at death turns on the parent's consent? Sort of strange. (I see from the opinion that a lot more was involved, including it seems the amount of time it took to conceive the child and a couple of statutes that are tough to fit into.) I've taught a couple of these kinds of cases in trusts and estates (including the Woodward case, which Vernoff discusses) and it seemed to me at the time that a lot turned on who was paying--social security administration or the estate of the deceased. Obviously, it's easier to ask for money from the social security administration than to try to take money from the other beneficiaries. But that doesn't seem to have worked here.

May have to add this to the line-up of cases in t&e this fall.

Kim Krawiec

Hi Al. You’re right that the case involved a number of issues and statutes. And I’m certainly not qualified to opine on the trusts & estates issues involved. But I don’t find it strange that consent to have, and thus support, a child would be relevant to the question of support -- from any source -- in a case in which the offspring is the product of artificial insemination, as opposed to the “old fashioned way” (i.e. sex). See, for example, the 2008 Pennsylvania Supreme Court case of Ferguson v. McKiernan, which held that “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” could not be held liable for child support, when the donor and donee had formed an agreement prior to conception that the donor would not be “responsible for supporting the child that results from the arrangement.”

Looking back at that portion of the Ninth Circuit opinion dealing with sperm donation, it looks as if the California statute specifically excludes a sperm donor as a “natural father,” and allows the husband to be considered a “natural father” after artificial insemination of his wife, but only if the husband has consented to the AI, which the husband did not consent to in this case. I’m sure that some of our family law colleagues have thought and written about these issues and, perhaps, will chime in with their thoughts and reactions.

I do know that the issue of consent to posthumous sperm use is one that has been written about quite a bit by those in the field of reproductive ethics, particularly in the U.K., where there have been several high-profile cases. See (can't seem to figure out how to add links in the comments. Well, I'm a newbie).


Agreed that this was settled by statutory interpretation and the CA law (which is what the ssi latches onto) turns in part on consent. Second, I agree that issues of "consent" (implied at least) are clear in "old fashioned" conception and that consent was not shown in any way here. (Little aside here: talk of "consent" makes for some interesting class discussion. I've observed, anecdotally, that male students think a lot more is needed to imply consent than women. I think the women are right on this one. But we'll talk about the "law of people magazine," or Dr. Phil another time.)

I acknowledge this is a case about statutory interpretation, not abstact policy, thought it seems to me that in the case of ssi, that consent shouldn't have a lot to do with whether a child is considered "a child" for support. Seems to me that the purpose of ssi is to provide support for fatherless (or motherless) children, not to draw distinctions based on whether a child was "consented to." I completely understand that calculus is different when we're talking about giving the posthumous child a share of the non-consenting parent's estate.

Michael Risch

Well, this blows an Ugly Betty plot to bits...

Kim Krawiec

Michael -- thanks for popping in.
Al -- now you're forcing me to think (as opposed to just type) over a holiday weekend, and you *know* how much effort that can take me. Here's my gut (meaning potentially wrong) instinct to your comments, which I think is of the "agree in part" variety. Unless we want each of the thousands of children born from sperm donors each year to have SSI (and potentially other) claims, I don't think that the "consent to support" issue can be so easily avoided by reference to the purposes of SSI. However, your comments have made me wonder whether these posthumous cases are simply different from and, therefore, irrelevant to (although that is not how the Ninth Circuit treats them), the broader question of how we define fatherhood in the case of sperm donation more generally. These cases certainly seem to raise interesting issues with potentially important policy implications in an age of quickly advancing reproductive technology. I'll have to think on it more. There you go, making me do the thinking thing again.

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