Divorcee must support donor-conceived children born during marriage

A man has been ordered to pay child support to his ex-wife for two children conceived through a sperm donor and born during the marriage. The Indiana Court of Appeals held that the children were 'children of marriage', despite not being biologically related to the man.

Steven Engelking and his ex-wife, Amy Engelking, decided to use donor sperm after learning it would not be possible to reverse Mr Engelking's vasectomy. The couple chose to use a known donor, who was the husband of Mrs Engelking's friend, because he looked like Mr Engelking and 'shared similar "characteristics and morals"', the court said. Two children were born using the donor's sperm in 2004 and 2006 from insemination procedures performed at home, without the involvement of a fertility doctor.

Mr Engelking supported the child, 'holding the child out to the world as his own', the court said. He maintained a relationship with the children after separating from his ex-wife in 2009, contributing to the costs of their upbringing and spending equal time with them. He continued to visit the children after he filed for divorce in 2010 until February 2012, shortly before the court granting the divorce ordered joint custody and that Mr Engelking must pay child support.

Mr Engelking challenged the order to pay child support arguing that the children could not be considered as 'children of the marriage' under state divorce laws because he did not consent to the artificial insemination procedures. The Indiana Court of Appeals declined to evaluate the credibility of Mrs Engelking's testimony that Mr Engelking knew about both procedures and had helped obtain the required equipment, which supported the earlier decision. It concluded that 'both father and mother "have an obligation to support the child[ren]"'.

The case puts Indiana's laws on sperm donation in the spotlight. 'Indiana's in a legal vacuum', said Steven Litz, a fertility lawyer working in the area told the San Francisco Chronicle. 'It screams for some kind of legislation'.

The Known Donor Registry confirms that sperm donation is not addressed under Indianan law. A number of other US states have enacted laws that usually state a husband who gives consent in writing to his wife's artificial insemination is considered the legal father. However, 'the courts are quite flexible in finding such "consent"', Professor Michael Higdon of the University of Tennessee College of Law told the San Francisco Chronicle.

Commenting on the Indiana court's decision, Litz said: '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'.