In what ultimately can be described as a pro-life decision, The Pennsylvania Supreme Court recently upheld an agreement to create a child using in vitro fertilization. In Ferguson v. McKiernan, Pa. No. 16 MAP 2005, decided December 27, 2007, the Pennsylvania High Court affirmed an agreement between a man and his former paramour to donate sperm for her conception of a child– on the condition that he not be held responsible for support.
In rendering its ruling, the Supreme Court disregarded the lower courts’ rejection of the agreement on public policy grounds. Both the trial court and the appellate court rejected the agreement, finding that Pennsylvania public policy disallowed agreements that avoided child support. The High Court, however, distinguished divorce cases and other traditional parenting cases from assisted reproductive technology cases. The court found that the “analogy…is unsustainable in the face of the evolving role played by alternative reproductive technologies in contemporary American society.” As this particular contract was fundamentally no different than a clinical artificial insemination agreement (despite the fact that the sperm donor and mother had a prior relationship), it should be upheld.
This case hinges on the intention of the parties. The analysis is not unique. Many assisted reproductive technology (ART) issues are adjudicated based on the intentions of the parties rather than the traditional focus on biology. A t least in this instance, children conceived through ART really are treated differently than children conceived traditionally. While logically the law shouldn’t discriminate against children produced with the help of science, this court has determined the benefits to society in facilitating ART outweighs the denial of support in this instance.
The Pennsylvania High Court is encouraging the creation of children using non-traditional methods. The court, in its progressive willingness to enforce non-traditional parenting agreements supports these procedures as a means for people–otherwise unable–to have children. The expression “pro-life” has certain definite political connotations. However, in a very literal sense, the Pennsylvania Supreme Court, by facilitating the creation of life, can only be described as pro-life.