The case of “JMK”

This pop quiz involves a particularly interesting, and occasionally absurd issue in family law – the question of how the courts determine exactly who is the parent of a child.*  This probably seems like a simple issue to resolve, especially now that a DNA test can determine genetic relationship with virtual certainty.

However, the assignment of the title of “parent” to an individual is decidedly more complicated in the law, especially in the case of fathers.  And in the eyes of the law, genetic relationship is only one of several ways that a man might acquire the legal designation of “father” or “parent.”

For example, under Washington law, a man who donates sperm for use in artificial insemination is generally not considered to be the legal father of any child conceived using that sperm, unless the parties agree, in writing, that the sperm donor is also the child’s “father.”  We’ll call this law “the sperm donor statute” for simplicity’s sake.

One of the purposes of the sperm donor statute was to prevent a man who anonymously donated sperm to any number of women – with whom the man had no other relationship – from later being obligated to pay child support purely based on his genetic relationship to a child with whom he’d likely have no other relationship.

The thinking is that a man who sells or donates his sperm probably isn’t trying to be a father in the traditional sense of the word, nor is the woman who receives it trying to create a parental relationship with him.  Thus a sperm donor is not considered a “father” to a child despite the fact that he is genetically related.

However, just as human relationships are immensely complicated, the repercussions of what appears to be a very sensible policy can be very complicated.  Let’s take a look at one real-life example of how complicated figuring out “who’s the daddy” can be…

Meet Michael, His Wife, His Girlfriend, and his son Jason…

In the late 1980s, “Michael” and “Teresa” met at work.  Michael was married, but he started stepping out on his wife with Teresa, and they began an off-and-on relationship that lasted for over 10 years.

Although we tend to assume that most men don’t want “the other woman” to have a child, Michael was different. In 1995, the he and Teresa began trying to have a child. After the couple could not conceive naturally, they used in vitro fertilization or IVF, in the hopes that Teresa would become pregnant.

The IVF treatments worked.  Teresa gave birth to “Jason” in 1998.  When Jason was born, Michael visited Teresa in the hospital, and wrote notes referring to himself as “Dad.” Michael also signed a paternity affidavit stating he was Jason’s father and had his name put on the birth certificate.  Jason even had Michael’s last name, and Michael paid Teresa child support for Jason’s care.

… and his other “son”, Derek.

In 2001 Teresa gave birth to her second child, “Derek.” Again, she used Michael’s sperm and conceived using IVF.

Now, this is where things get… even more complicated.  Derek was conceived in February of 2001.  Neither Michael nor Teresa disputed that fact.  What was disputed, however, is whether Teresa and Michael were still in a relationship at the time she became pregnant by Michael via IVF.

Teresa claimed that the relationship ended in March 2001, while Michael claimed the couple was kaput by January of 2001 – one month before Derek was conceived via IVF.

Unlike the proud papa Michael had been with Jason, Michael reacted differently to Derek. He visited Teresa in the hospital while she was in labor, but he did not sign a paternity affidavit.  The cutesy notes of Jason’s birth were no more.

Michael paid some child support for Derek, but stopped in January 0f 2002, when Derek was about 3 months old.   Notably, the stop in payments corresponds with when his wife (remember, Michael has a wife?  We think he probably had difficulty remembering this as well…) finds out about the affair.

Michael started making up all sorts of stories to try to smooth things over with his wife.  He claimed he had only paid child support payments because Teresa was blackmailing him to keep the relationship a secret, and that he had signed Jason’s paternity affidavit under blackmail, duress, and fraud.

Teresa filed a petition in Superior Court, and asked that Michael be declared the father of both Jason and Derek.  She also asked the court to order Michael to pay child support for both boys.

Michael claimed that he was not the “father” of either child because he did not sign a written agreement stating that he was to be the father before Teresa became pregnant.  Michael even claimed that because Teresa conceived by IVF, he should not be required to take a blood test because a court could only require blood testing when there was a reasonable possibility that the “requisite sexual contact” occurred.

Michael lost round one. The Superior Court ordered him to take the blood tests, which confirmed that he was the biological father of both boys. The court then ordered him to pay child support.

Michael appealed the case, arguing that, under the sperm donor statute, he was not legal father of Jason or Derek because he did not sign a written consent prior to Teresa’s insemination.

The Court of Appeals reversed the ruling. It determined that Michael was just a sperm donor for both boys, despite the fact that Teresa conceived using IVF and not artificial insemination. He was not the legal father because the parties had not agreed in writing prior to IVF that he would become the father by giving his sperm to Teresa.

So… quiz time:

Did the Supreme Court agree with the Court of Appeals?

a)      Yes. The Supreme Court agreed with the Court of Appeals stating that Michael was not the legal father because he did not agree in writing prior to IVF that he would become the father of Jason and Derek by giving his sperm to Teresa.

b)      No. The Supreme Court stated that Michael was Jason’s father because he had signed the paternity affidavit, but was not Derek’s father because he had not signed the affidavit.

c)      No. The Supreme Court stated that Michael was the father of Jason and Derek because court-ordered blood tests had confirmed that he was the biological father of both boys.

d)     No. The Supreme Court stated that Michael was the father of Jason because he had signed the paternity affidavit. Michael was declared the father of Derek because the former statute only prevented semen donors from becoming the father when the woman conceived via artificial insemination, not IVF. Further genetic testing confirmed that Michael was Derek’s father.

Answer: D. See In re. J.M.K.; 155 Wn.2d 374 (2005).

One interesting thing about this case – and there are many very interesting things about JMK – is that Michael was deemed the father of Jason and Derek for two totally different reasons!

As for Jason – under Washington law, a man who signs an acknowledgment of paternity has 60 days after filing the acknowledgement to challenge the acknowledgment. Otherwise, it is deemed valid. Michael did not challenge his acknowledgment within the time frame; therefore, he was deemed the legal father of Jason. (See RCW 26.26.330.)

As for Derek  – the sperm donor statute at the time of Derek’s conception and birth referred only to artificial insemination and not IVF. Therefore, it was not applicable to Michael’s case because Derek was conceived using IVF. Michael was then deemed to be the father of Derek when genetic testing confirmed he was the father. The current statute, however, references all methods of assisted reproduction – including IVF. (See RCW 26.26.705.)  Thus, it’s possible, if not likely, that if this case came up now, Michael could be deemed the “father” of Jason but not Derek – despite the fact that, genetically speaking, he is the father of both boys.

The Uniform Parentage Act and constitutional rights of children:

Another interesting aspect of JMK is the Washington Supreme Court’s recognition that children of married parents and children of non-married parents have the same rights.  The Court noted that if they decided that Michael should not be at least financially responsible for both children, they would essentially create one set of rights for children whose parents aren’t married, and another for children whose parents are married.  The Court stated that this raised a constitutional concern regarding the legal standing of children of unmarried parents.

This concern led to Washington’s adoption of the Uniform Parentage Act or “UPA.”  The purpose of the UPA is to “give full equality to all children by recognizing their right to parental support and their legal relationship with both parents.” (Gomez v. Perez, 409 U.S. 535, 93 S. Ct. 872 (1973)).  The UPA, in addition to recognizing that all children have the same rights regardless of whether their parents are married – also sets out a number of ways in which a man can be deemed the “father” of any child.

*Seattle University School of Law Professor, Julie Shapiro, provided much of the inspiration for this article.  Professor Shapiro regularly leads thought-provoking discussions of the issue of  parenthood, and especially fatherhood, both in the classroom and on her excellent blog, Related Topics.