In the unpublished (non-precedential) trial court case of Rendon v. Ale, the Court determined that a biological father, who while married to another woman, donated sperm in order for another woman to be artificially inseminated was not insulated under the protections of the Artificial Insemination Statute.

In Rendon, the parties, who were initially both married to other people, started a romantic relationship. After many years of their on again, off again affair, and notwithstanding that Defendant was still married, Defendant agreed to donate his sperm to Plaintiff for the purposes of artificial insemination.  Five days after his first sperm sample was taken, Plaintiff executed and had notarized a “Resignation Letter of Obligations” which stated:

To whom it may concern: This letter confirms the renunciation of all

kinds of paternal obligations that can have Carlos Ale identified with

Social Security # ***-**-3381 with my son or daughter since his (her)

procreation to his (her) adulthood. This includes maintenance, healthcare,

child support or any other responsibility as a father.

Very truly yours, /s Alba Rendon.

Prior to Plaintiff undergoing any procedures, both parties were required execute two separate consent forms: one for the “Consent for Intra-Uterine Insemination (IUI)with Sperm” and one Consent Form: In Vitro Fertilization (IVF)/Embryo Transfer Program”. Both of these consent forms included a certification that stated: “[t]he purpose of this procedure is to attempt to have a child. We certify here that we are sexually intimate partners and also that neither of us is legally married to another person”.

After multiple attempts of IUI, Plaintiff became pregnant with twins through IVF. After Plaintiff was about four months pregnant, she contacted URA and indicated that she and her “ex-husband” had split up and that he could sign any documents required to permit the remaining embryos to be destroyed.

After the twins were born, Plaintiff filed a petition for child support, full custody and for paternity to be established on the record. In response, Defendant filed a motion to dismiss and Plaintiff amended her petition to include that Defendant’s name be added to the twins’ birth certificates.

The trial judge denied Defendant’s motion to dismiss, ordered genetic testing and issued a temporary child support award of $250.00 per week to be paid through the Probation Department and held (not released to Plaintiff) until the resolution of this matter. After paternity was established, the court ordered discovery (exchange of documents/records and depositions) and scheduled the matter for trial.

At trial, the doctor from the University Reproductive Associates (URA), Fertility Laboratories, testified at trial that had URA known that the Defendant was married to someone other than the Plaintiff, URA would have not permitted Plaintiff to go forward with the procedures because they are not permitted to create a child outside of Defendant’s marriage.

Relying on New Jersey Supreme Court precedent, the trial court held that the parties could not contract away the Defendant’s parental rights and obligations. In re Baby M, 109 N.J. 396 (1988); see also E.E. v. O.M.G.R., 420 N.J. Super. 283 (Ch. Div. 2011). The Courts of our state have noted the specific instances upon which parental rights can be legally terminated under New Jersey Law: (1) when a parent is declared unfit, (2) an adoption has taken place, or (3) if [the Division of Child Protection and Permanency] has removed the child from a parent. Monmouth County Div. of Soc. Serv. for D.M. v. G.D.M., 308 N.J. Super. 83, 90 (Ch. Div. 1997) (citing In re Baby M, 109 N.J. at 426). Our Courts have unequivocally stated that a “child’s relationship with his or her parents is so significant that all doubts are to be resolved against the destruction of that relationship.” See E.E. v. O.M.G.R., 420 N.J. Super. 283, 287-288.

Although parental rights are often presumptively established after paternity is recognized, there are exceptions to same, i.e., the Artificial Insemination Statute. Defendant argued that he was protected from the relief that Plaintiff was seeking under this statute, which reads as follows:

Pursuant to N.J.S.A. 9:17-44(b), “unless the donor of semen and the woman have entered into a written contract to the contrary, the donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor’s wife is treated in law as if he were not the father of a child thereby conceived and shall have no rights or duties stemming from the conception of a child.”.

The Court found that the parties did not enter into a written contract that is contrary to the Artificial Insemination Statute. Moreover, although technically Defendant met the statutory requirements (Plaintiff not being his wife), the Court determined it would be a “gross injustice if the biological father’s deception, in order to comply with the licensed physician requirement of § 9:17-44(b), would provide him with the statute’s protection by permitting him to escape obligation.”

The Court noted that both parties testimony in this matter was not credible, finding that they neither came to the Court with “clean hands”, nor kept their hands clean throughout the proceedings.

“These former intimate partners expect this court to believe that they planned to conceive a child together through artificial insemination, then together they deceive a licensed physician in order to have the procedure performed, and they expect this court not to inextricably link them, along with their children, for the rest of their lives. This court cannot force the biological father to exercise his parental rights with respect to the twins; however, this court will not permit him to escape his parental obligations.”

As such, the Court granted the mother’s petition for paternity, full custody, child support (releasing the monies that were held during the pendency of the litigation, as well as child support going forward), and to add the Defendant’s name to the twins’ birth certificates.

Now I realize most people reading this are thinking, “Wait a minute! Didn’t the parties make a contract that relived Defendant of all obligations?”. While the Courts of our state often enforce agreements between consenting parties, noting that people are free to make “bad deals”, that does not mean you are free to bargain away the rights of a child due to the Court’s inherent jurisdiction to protect children. What you should take away from this case is that anytime you are essentially “contracting” with another party, especially concerning the welfare of a child, you should be seek counsel to discuss the current state of the law to ensure your “contract” is in compliance therewith.

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Lauren E. Koster is an associate in Fox Rothschild LLP’s Family Law Practice Group. Lauren practices in the firm’s Princeton, New Jersey office and can be reached at (609) 844-3027 or lkoster@foxrothschild.com.