Posted by
Andrews on Friday, January 04, 2008 5:57:38 PM
I saw the following in
Best of The Web (link to the specific day is
here, it is the 8th item down):
Brave
New World
"The Pennsylvania Supreme Court ruled that a woman who promised a sperm
donor he would not have to pay child support cannot renege on the deal,"
the Associated Press reports from Harrisburg:
The 3-2 decision overturns lower court rulings under which Joel L. McKiernan
had been paying up to $1,500 a month to support twin boys born in August 1994
to Ivonne V. Ferguson, his former girlfriend and co-worker. . . .
Ferguson and McKiernan met while working together at Pennsylvania Blue Shield
in Harrisburg and had a sexual relationship that waned before Ferguson persuaded
him to donate sperm for her.
Courts found that the two agreed McKiernan would not have to pay child support
and would not have visitation rights, but Ferguson later changed her mind
and sued.
A county judge said it was in the twins' best interests that McKiernan be
required to support them. In addition to monthly payments, McKiernan also
was ordered to come up with $66,000 in back support. The appeal reverses that
order.
It does seem unreasonable to force McKiernan to pay child support. After all,
the [sic] had a deal. On the other hand, it also seems unreasonable to allow him to
withhold it:
Justice J. Michael Eakin, in a dissent, said a parent cannot bargain away
a child's right to support. "The children point and say, 'That is our father.
He should support us,' " Eakin wrote. "What are we to reply? 'No! He
made a contract to conceive you through a clinic, so your father need not
support you.' I find this unreasonable at best."
The majority made clear that "reproductive rights" trump the rights
of the child:
"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 friend
or acquaintance who asks, significantly limiting a would-be mother's reproductive
prerogatives," Justice Max Baer wrote in the majority opinion issued last
week.
Maybe some limits on "reproductive prerogatives" are not such a bad
thing. A lack of them produces cases like this in which no good outcome is possible.
So, why do I bring this up?
My problem is that the court felt the need to bring "reproductive rights" into the matter.
First, reproductive rights are a very contentious field, which seem to vary from court to court, it is not exactly a settled body of law, such as property rights. Some matters are settled, to a degree, but usually only because the Supreme Court has issued a final ruling, and that can change the moment the court's composition changes.
Second, reproductive rights often produce counter-intuitive results. For example, parents are responsible for the support and care of their children, which is why they must consent for any surgical procedure, even something as trivial as an ear-piercing, as they not only have to make such decisions for their children, but are also on the hook should something go wrong and the child require support from a mishap. But, under the rubric of reproductive rights, many argue a 14 year old should be able to have an abortion without even parental notification, much less consent. Nor is this the only case where reproductive rights result in rulings contrary to those produced by a traditional understanding of civil rights.
Third, I just don't see how reproductive rights really figure into this at all. The idea that making donors responsible for support will limit reproductive rights is a bit absurd. It creates a liability for the donors, and likely will limit the availability of sperm donors, but that does not prevent artificial insemination, it simply means that potential mothers will need to pay more to offset the possible liability. That is not a "rights" issue.
So why did this become a reproductive rights case? I think it is just a reflex. Courts have been trained by "reproductive rights" lawyers, and by both the pro-life and pro-choice lobbies to see anything relating to reproduction as a "reproductive rights" issue. The moment it involves conception they are unable to think of anything else, even in a case as simple as this.
Simple? Yes, it is very simple. The case is a contractual dispute, and has nothing to do with reproductive rights. And once we decide to ignore the reproductive rights arguments, and view it as nothing more than a contract contrary to public policy, and thus unenforceable as written, it is very simple to resolve.
Courts have a long history of rewriting contracts (though they call it "interpreting") when those contracts are unenforceable as written. They are especially likely to do so when they want one party or the other to prevail and the law cuts against them. And as I find it a bit tacky that the mother promised to not seek support only to later sue for support, I think a judge would have no problem "reinterpreting" this contract.
And how easy it is to do. True, the right to support is held by the children, and the mother cannot sign it away. But the judges could decide that, rather than signing away support rights, the mother really meant to say she would indemnify the father against any claims for support. That way she can still pursue this claim for support, but the father will have an action against her to recover the same amount. All without depriving the children of their right to support.
Finally, the best argument, at least from the perspective of the lawyers and the courts, is that, while everyone else (mostly) breaks even, the endless lawsuits this inspires will be yet another pay day for both the lawyers and the courts. So what reason would they have to oppose my logic?