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March 9th, 2012 by Robert Franklin, Esq.  
A Massachusetts Court of Appeals has ruled that a man whose wife impregnated herself via artificial insemination must pay child support even though his consent to the procedure was brought about by his wife’s misrepresentations.  Read about it here (Patriot Ledger, 3/7/12).

Chukwudera Okoli and Blessing Okoli were married in 1991, but split up childless in 2000.  But Blessing wanted a child, so she decided to use in vitro fertilization to do the job.  She asked Chukwudera for his consent to the procedure which he refused.  But she persisted, and she wielded quite a weapon with which to influence his decision.

Chukwudera was not yet a United States citizen and he strongly wanted a green card.  Blessing had been supporting his application for the higher immigration status and she threatened to withdraw that support if he didn’t consent to the IVF procedure.  As the trial court found,

“the Wife used her sponsorship of the Husband’s citizenship application as a lever to get what she wanted from him. She consistently threatened him that if he refused to do what she wanted, she would withdraw her support of his application. The Husband wanted to become a U.S. citizen and did not want her to withdraw her support, so when he could he acquiesced to the Wife’s requests.”

So eventually, under her threat of withdrawing her support for his green card application, Chukwudera signed an agreement saying that he would execute the necessary consent forms for Blessing to undergo IVF treatments.  In exchange, she agreed to never ask him for any form of financial support for herself or the child.

So, each time she went in for treatment, Chukwudera signed a consent form for the procedure.  After several tries, Blessing conceived and twins were born in 2003.  And of course, when the two finally divorced, Blessing did precisely what she promised not to do – demanded child support.  Just to gild the lily, she also withdrew her support for his green card application, which was granted anyway.

The trial court granted Blessing’s demand for support and of course gave her custody.  Chukwudera appealed the award of support.  His basis for doing so was that there is a Massachusetts statute that says that, when a married woman conceives via IVF using sperm from a man not her husband, the husband must consent to the procedure in order to be adjudicated the legal parent of any resulting child.  If he consents, the child is considered his and he must pay support in the event of divorce.  On the other hand, no consent, no parental rights or obligations.

The issue before the court therefore was whether Chukwudera’s signature on the various consent forms was such as to obligate him to Blessing’s children.  The court said it was.  Put simply, the appellate court’s ruling reflects a pro-mother bias that’s so powerful that it blinded the three judges to the obvious.

First, it’s likely that Chukwudera did sign the consent forms.  He admitted to signing all but the last one; on that one he says his signature was forged, but the trial court didn’t buy his claim.  So for the sake of argument I’ll assume he signed them all.

The appellate court, in this ruling, fails basic contract law.  Keep in mind that this is not a case in which a man agrees to father a child with his wife or girlfriend only because she agrees to not ask him for child support.  In that case, he’s on the hook and I believe rightly so.  Public policy demands that men and women who have sex and produce children support those children.

But that’s not the case here; Chukwudera Okoli fathered no one.  His wife conceived twins with another man who remains anonymous.  The only way Chukwudera can be called the father is, according to the state statute, if he agreed to the procedure.  He did agree to the procedure, but only because of the promises his wife made to him.  Without those promises, he wouldn’t have signed the consent form, she knew it and the trial court so found.  Her promises were made for the sole purpose of obtaining his consent to her IVF procedure.  Having reneged on her promises, she cannot enforce his.

Consider any simple contract.  Suppose John agrees to buy Joe’s car, but only if Joe agrees to replace the brakes after the transfer.  John gives Joe the money and assumes title to the car, but Joe refuses to fix the brakes.  Is John stuck with the car?  Of course not; he can sue to get his money back.  His promise was obtained conditioned on a promise of future action by Joe which wasn’t forthcoming.  The contract is voidable at John’s discretion.  A contract usually is the exchange of two promises to behave in certain ways in the future, e.g. transfer money and transfer a car.  If one promise isn’t performed, the second need not be.  As I say, it’s basic contract law.

But the judges missed that somehow, and I think I know how.  I think that when judges have a case before them in which a man seeks to assert rights regarding a child or child support, their tendency is to rule for the mother irrespective of everything else.  In this case, that meant totally ignoring the fact that Chukwudera’s consent, that was required by law for him to be ruled the father of the twins, was conditioned on promises made and then broken by Blessing.

This is a particularly egregious case of placing the father’s rights and duties in the mother’s hands.  As such, it’s most analogous to paternity fraud.  What the court tells women loudly and clearly is that lying and deception in order to get a man to agree to IFV is perfectly fine.  Indeed, they can say anything they want, promise anything they want and the man will still be forced to pay to support a child he never would have agreed to be conceived had he known the truth.

The Patriot Ledger article includes the entire text of the appellate court’s decision.  Readers can vote online as to whether they agree or disagree with the court’s ruling.  To date, 70% of readers disagree.  My guess is they understand the obvious point the justices do not – that a promise is a promise.

 

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