INDIANAPOLIS (AP) — An eastern Indiana man who divorced his wife must pay child support for their son and daughter even though the children were conceived by artificial insemination using sperm donated by another man, the state appeals court has ruled.
The Indiana Court of Appeals on Tuesday rejected the Delaware County man's argument that he shouldn't have to pay child support because the children were not his biological offspring.
According to court documents, the couple married in 2001 and began investigating artificial insemination after they learned that the husband's vasectomy was likely irreversible. A friend offered his sperm and the husband agreed because he and the other man resembled each other and shared similar "characteristics and morals," the documents say.
They performed the procedure without a doctor and gave birth to a boy in 2004, court records say. Two years later, she repeated the procedure and gave birth to a girl.
The husband treated the children as if they were his biological children and after the couple separated in 2009, spent time with them, and helped pay for day care, clothing and sports fees, the documents say. But when the husband filed for divorce in October 2010, he said he was not obligated to pay support because the kids were not his biological children. He also said he had not consented to the artificial insemination. His ex-wife contended he had.
A Delaware County judge ruled last May that the boy and girl were children of the marriage and that the husband was required to help support them. The state appeals court upheld that decision.
Indiana has laws that regulate artificial insemination to some extent — requiring HIV testing of sperm, for example — but there is no statute regarding parental rights or child support.
Attorney Paul Baylor of Anderson, who represented the mother, said advances in the biological sciences present unforeseen problems that decades-old laws aren't equipped to handle.
"We're gonna have to find ways to deal with these new issues as they come up," he said. "There's a lot of bioethical issues that are coming before the legislatures and the courts."
An attorney who specializes in reproductive issues agreed.
"Indiana's in a legal vacuum," said Steve Litz, a Monrovia attorney who connects childless couples with surrogate mothers. "It screams for some kind of legislation."
The Known Donor Registry, a website that helps connect would-be parents with sperm donors, says 32 states stipulate that the husband, not the sperm donor, is the legal father. Virtually all those states require the husband's consent — generally, in writing.
"Most states require the husband to have consented to the AI before they will hold him liable for child support," Michael J. Higdon, an associated professor at the University of Tennessee College of Law, said in an email Wednesday.
"However, the courts are quite flexible in finding such 'consent,'" he added.
In a research paper published in 2011, Higdon said a handful of states maintain that a husband's consent is implied as long as he does not object within a certain amount of time.
Litz said the appellate court made the right decision.
"The Court of Appeals correctly said we don't care about biology; If you are going to hold yourself out as a parent, we are going to impose parental rights on you," he said.
The husband's attorney declined comment.
Follow Charles Wilson on Twitter: https://twitter.com/CharlesDWilson