The Unwilling Sperm Donor

I'm asked dozens of legal questions every day. Most are basic questions about things like injuries, divorce, criminal defense. Many of these everyday legal problems are pretty straightforward, from a legal point of view. 

I also hear some pretty interesting, unique stuff. Last week, a man called and told me that his wife had secretly inseminated herself with his sperm, without his consent. He wanted to know if he would have to pay child support?

About five years ago there was a similar case in Illinois. A man sued his former girlfriend in Cook County for emotional distress, and even claimed fraud and theft, after she allegedly kept his sperm after oral sex and impregnated herself. She gave birth to a child and filed for child support years later. The man was ordered to pay $800 a month. He didn't know about the child. The court decided it was not fraud, or theft (he willingly gave up the sperm without expecting to get it back), but allowed him to pursue his claim for emotional distress. He was still required to pay child support.

I'm not sure what the right answer is, either legally or morally speaking. But it brings up the issue of whether unwilling fathers should have to support their children.

Consider the following rules in Illinois child support law:

-          In Illinois, a child born during a marriage is legally considered the child of the husband. A paternity test can be used to contest the presumption that the husband is the father.

-          Another Illinois law says that if a woman goes to a sperm bank and gets artificial insemination from a donor, without her husband's written consent, he has no child support obligation.

-          If a couple accidentally gets pregnant, and the man wants to terminate the pregnancy but the woman does not, and it goes forward and she gives birth, the man is obligated to pay child support.

-          Looking at the big picture, Illinois child support laws are heavily focused on the best interest of the child.

Illinois courts tend to be very focused on the last item - the best interests of the child. There are all sorts of crazy stories that end with a father owing child support. For example, when a child is born where there is no marriage, the father can sign a Voluntary Acknowledgement of Paternity form, which basically says that he is admitting he's the father. If he later finds out he was lied to and isn't actually the father, even if he can prove it, he may still owe child support.

As for the guy who called me, my best guess, legally speaking, is that he will end up paying child support. As far as what's right or just, I don't know. In my opinion, what the wife and girlfriend did in these cases is completely wrong. On the other hand, the best interest of the child would be to have the support of both parents. Either way, someone is being punished. Should it be the man tricked into being a father or the child born as a result?  I'd like to see this be an instance where all things being equal, the tricked man gets custody and the mom pays child support.


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  • I guess the latter also depends on the child's best interests. That of course is just a supposition.

    They could also go on Maury to work it out. Somewhat similar to Bart suggesting that everyone go on Jerry when the alien inseminated Marge. However, the latter was fiction, as the combatants did not succeed in killing Jerry, as they claimed.

  • The tragic and unnecessary consequences of paternity fraud fall first and foremost on children. Not only do children learn that the man they thought was their biological father is not, but they also learn that their mother lied to them and had sex with a man other than the one they believed was their biological father. Both consequences can be devastating to a child.

    The tragic consequences of paternity fraud fall next upon the presumed (through marriage) or named man who is in fact not the biological father because the mother had sex with another man.

    In the absence of mandatory DNA testing at birth, the married (and subsequently divorced) or named man is obliged by the state to pay child support.

    The only parties who would lose under laws requiring DNA testing at birth are wives who commit adultery or unmarried women who, for whatever reason, name an innocent man.

    In no other area of the law do we punish the victim for the conduct of two other people.

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