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Friday, May 7, 2004 - Page updated at 12:00 AM

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Court rules sperm donor is not liable for children

Seattle Times staff reporter

Other court rulings


Washington appeals courts have decided other complicated cases involving artificial insemination:

In 2002, the Washington Supreme Court ordered the destruction of two frozen embryos during a custody dispute between David and Becky Litowitz. The ruling was a narrow interpretation of the contract the couple signed with a California embryo bank and didn't address the ethics of custody of the embryos, which contained David Litowitz's sperm and a donated egg.

Last week, the state Division I Court of Appeals granted Mian Carvin the right to ask for shared parenting of an 8-year-old daughter born of her ex-partner's egg and donated sperm. Carvin was granted that right because of psychological bonds formed while she raised the girl.

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An appeals court ruled yesterday that sperm donors don't have the rights and responsibilities of fatherhood without a specific contract saying so, clarifying a law critical to many adoptive parents, gay couples and fertility clinics.

The ruling, which comes in a tangled Pierce County case, raises an unusual scenario: A man who fathers a child through a sexual relationship can be made to pay support. But if the same child is born in a test tube, the father can walk away.

According to the appeals court, Michael Kepl agreed to give his long-term girlfriend, Teresa Brock, a sperm donation through a University of Washington fertility clinic. Kepl was married and shielded the affair and his donation from his wife.

When a boy was born to Brock in 1998 through in vitro fertilization, Kepl took out a life insurance policy benefiting the baby, stayed in regular contact, paid up to $650 a month in unofficial child support and signed a sworn statement of paternity.

But the couple didn't sign a contract saying Kepl accepted legal responsibility for the child. Under state law, sperm donors are shielded from the legal duty of fatherhood, except where couples sign a contract welcoming the donor into his child's life.

As the affair was crumbling in 2001, Brock had a second child with Kepl's sperm. They give differing versions about Kepl's approval for the second pregnancy. He said he didn't; Brock said it was his idea.

Kepl stopped paying the support in early 2002, when his wife learned of the affair. Again, Kepl and Brock differ: He said she told his wife, while Brock said she didn't blow the whistle.

In 2002, Brock won nearly $900 a month in child support, plus her attorneys' fees, when she took Kepl to Pierce County Superior Court. The trial court focused on their consensual affair, dismissing Kepl's arguments as a sperm donor shielded by state law.

Yesterday's Appeals Court ruling reversed the award for monthly support and the attorneys' fees, saying the law is unambiguous: Donors can't be forced to accept the rights and responsibilities of fatherhood without signing a contract.

The concise, four-page ruling is believed to be the first in the state to address the rights of sperm donors when they're asked for child support.

Kepl said yesterday he made a mistake in having the affair, but said he and Brock agreed he would play little role in their child's life. He said he signed the paternity affidavit and gave the unofficial child support to prevent Brock from talking to his wife.

"I would try to do anything I could to prevent her from finding out," Kepl said. "The girlfriend knew it."

Brock, reached yesterday while she was feeding dinner to the two children, said the ruling was as financially devastating as it was baffling. She said she wasn't told by her fertility doctor that a contract was required to make Kepl the legal father, or she would have insisted on one.

"This is a huge ruling, and not just for me," she said. "There's a lot of children out there where the father could walk away now."

Brock's attorney, Daniel Smith of Puyallup, said the ruling trumps paternity statutes in favor of the sperm donor shield, and should force the Legislature to reconsider the donor law.

"The frustrating thing is the court didn't look at the best interest of the child," Smith said.

Lisa Stone, executive director of the Northwest Women's Law Center, said she followed the case because of its potential effect on adoptive couples, particularly gay couples who rely on sperm donors. "It's just a weird case," she said.

Though the ruling hurt Brock, it could also shield women who get artificially inseminated from donors who later want to intervene in their child's life, said Stone.

"For infertile people or women who want to have a child, this protects them," she said. "It also protects the sperm donor. If you provide sperm, you're not the father unless there's a separate piece of paper that says this person will be the father and donor."

Kepl said he is now getting a divorce because his wife is so angry about the affair, and said he has yet to tell their teenage daughter the whole story.

"It's been hugely traumatic," he said.

Jonathan Martin: 206-464-2605 or jmartin@seattletimes.com

Copyright © 2004 The Seattle Times Company

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