Ferguson v. McKiernan, No. 16 MAP 2005.

CourtUnited States State Supreme Court of Pennsylvania
Writing for the CourtBaer
PartiesIvonne V. FERGUSON, Appellee v. Joel L. McKIERNAN, Appellant.
Decision Date27 December 2007
Docket NumberNo. 16 MAP 2005.
940 A.2d 1236
Ivonne V. FERGUSON, Appellee
v.
Joel L. McKIERNAN, Appellant.
No. 16 MAP 2005.
Supreme Court of Pennsylvania.
Argued May 17, 2005.
Decided December 27, 2007.

[940 A.2d 1238]

John W. Purcell, Jr., Harrisburg, for Joel L. McKiernan.

Elizabeth Aycock Hoffman, for Ivonne V. Ferguson.

CAPPY, C.J., CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN, BAER, JJ.

OPINION

Justice BAER.1


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 prior 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.

940 A.2d 1239

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.

Early 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

To that end, Mother continued her consultations with Dr. Dobson at Hershey Medical Center, at least once visiting Dr. Dobson with a male companion. Although

940 A.2d 1240

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 IVF 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.

In 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.

940 A.2d 1241

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 wife was pregnant with their second child when she testified in the trial court in these proceedings.

Based 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...

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17 practice notes
  • Sodexomagic, LLC v. Drexel Univ. Sodexomagic, LLC, s. 19-1028 & 19-1107
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • January 20, 2022
    ...A.2d 1006, 1008 (1998) )); Tayar v. Camelback Ski Corp. , 616 Pa. 385, 47 A.3d 1190, 1199 (2012) ; Ferguson v. McKiernan , 596 Pa. 78, 940 A.2d 1236, 1244 (2007).12 See Devlin v. City of Phila. , 580 Pa. 564, 862 A.2d 1234, 1244 n.9 (2004) ("[T]o create an enforceable contract, parties must......
  • SodexoMagic, LLC v. Drexel Univ., 19-1028
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • January 20, 2022
    ...Ins. Co., 711 A.2d 1006, 1008 (Pa. 1998))); Tayar v. Camelback Ski Corp., 47 A.3d 1190, 1199 (Pa. 2012); Ferguson v. McKiernan, 940 A.2d 1236, 1244 (Pa. 2007). [12] See Devlin v. City of Phila., 862 A.2d 1234, 1244 n.9 (Pa. 2004) ("[T]o create an enforceable contract, parties must delineate......
  • C.G. v. J.H., No. 2 MAP 2018
    • United States
    • United States State Supreme Court of Pennsylvania
    • September 21, 2018
    ...turn to donor gametes to conceive." Id. at 25. C.G. reasons that reading this Court's decision in Ferguson v. McKiernan , 596 Pa. 78, 940 A.2d 1236 (2007) with the Superior Court's decisions in In re Baby S. , 128 A.3d 296 (Pa. Super. 2015) ; J.F. v. D.B. , 897 A.2d 1261 (Pa. Super. 2006) ;......
  • Huss v. Weaver, No. 1703 WDA 2013
    • United States
    • Pennsylvania Superior Court
    • February 5, 2016
    ...determine whether the above highlighted "$10,000 clause" is unenforceable as against public policy. In Ferguson v. McKiernan, 596 Pa. 78, 940 A.2d 1236 (2007), our Supreme Court instructed us on the proper legal standards to apply when deciding such issues:In assessing whether a contractual......
  • Request a trial to view additional results
17 cases
  • Sodexomagic, LLC v. Drexel Univ. Sodexomagic, LLC, s. 19-1028 & 19-1107
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • January 20, 2022
    ...A.2d 1006, 1008 (1998) )); Tayar v. Camelback Ski Corp. , 616 Pa. 385, 47 A.3d 1190, 1199 (2012) ; Ferguson v. McKiernan , 596 Pa. 78, 940 A.2d 1236, 1244 (2007).12 See Devlin v. City of Phila. , 580 Pa. 564, 862 A.2d 1234, 1244 n.9 (2004) ("[T]o create an enforceable contract, parties must......
  • SodexoMagic, LLC v. Drexel Univ., 19-1028
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • January 20, 2022
    ...Ins. Co., 711 A.2d 1006, 1008 (Pa. 1998))); Tayar v. Camelback Ski Corp., 47 A.3d 1190, 1199 (Pa. 2012); Ferguson v. McKiernan, 940 A.2d 1236, 1244 (Pa. 2007). [12] See Devlin v. City of Phila., 862 A.2d 1234, 1244 n.9 (Pa. 2004) ("[T]o create an enforceable contract, parties must delineate......
  • C.G. v. J.H., No. 2 MAP 2018
    • United States
    • United States State Supreme Court of Pennsylvania
    • September 21, 2018
    ...turn to donor gametes to conceive." Id. at 25. C.G. reasons that reading this Court's decision in Ferguson v. McKiernan , 596 Pa. 78, 940 A.2d 1236 (2007) with the Superior Court's decisions in In re Baby S. , 128 A.3d 296 (Pa. Super. 2015) ; J.F. v. D.B. , 897 A.2d 1261 (Pa. Super. 2006) ;......
  • Huss v. Weaver, No. 1703 WDA 2013
    • United States
    • Pennsylvania Superior Court
    • February 5, 2016
    ...determine whether the above highlighted "$10,000 clause" is unenforceable as against public policy. In Ferguson v. McKiernan, 596 Pa. 78, 940 A.2d 1236 (2007), our Supreme Court instructed us on the proper legal standards to apply when deciding such issues:In assessing whether a contractual......
  • Request a trial to view additional results

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