Support is ordered for in vitro children

A woman who had two children with her long-term boyfriend through in vitro fertilization is entitled to child-support payments, the Washington state Supreme Court ruled yesterday.

The ruling overturns a Court of Appeals decision saying the boyfriend was not responsible for child support.

"It's really important that the Supreme Court focused strongly on the ... public policy that parents need to take responsibility for all their children, whether or not the parents were married or unmarried," said Mark Weiss, past chairman of the family-law section of the Washington State Bar Association.

The tangled case centers on the relationship between Teresa Brock and Michael J. Kepl, who had a decadelong affair. Kepl was married and he and his wife had a young child. He kept his affair secret.

Several years into Kepl and Brock's relationship, the pair decided to have a child, eventually turning to in vitro fertilization using Kepl's sperm.

In 1998, Brock gave birth to a son and Kepl welcomed him as "our bundle of joy," the court opinion states. He signed a paternity affidavit at the hospital and later took out a life-insurance policy naming the boy as primary beneficiary. Initially, Brock said, he acted like a father, playing with the boy, going to birthday parties and paying up to $600 a month in child support.

In 2001, Brock gave birth to a second son but by this point, the relationship had soured. He claimed she used his frozen sperm to have a second child without his consent. Soon thereafter, he stopped the child-support payments.

"This man was the most loving father to our first son for 2 ½ years," Brock said. "Then he walks away and says, I never intended to be a father."

Kepl declined to speak with a reporter, except to say yesterday's decision was a surprise. He referred calls to his attorney, who declined to comment.

In February 2002, Brock filed a petition to establish the two boys' paternity and child-support payments.

"I just want what's fair and right for my kids," she said.

Kepl said that he signed the original parentage affidavit only because he feared Brock would reveal the affair to his wife. Additionally, he argued, because the children were the result of in vitro fertilization, he doesn't count as the "natural" father anyway. That's because there is a special law covering artificial insemination that requires both the birth mother and the sperm donor to agree in writing that the donor is the child's father.

The idea is that in many cases, men donate sperm without having any intent of acting as a father, and women don't necessarily want the biological father in their lives. Under current law, unless a sperm donor signs an agreement, he is not considered the child's father.

Kepl never signed such an agreement.

The Court of Appeals accepted his argument, denying child support to Brock.

The Supreme Court yesterday disagreed. For the first son, the court ruled that signing the paternity affidavit acknowledged his parental responsibility, even though he didn't sign additional paperwork covering in vitro fertilization.

As to the second son, the court ruled that the statute in question covered artificial insemination, not in vitro fertilization, so it's not applicable.

"The court is saying he can't hide behind that statute given the fact that he was a de facto parent," said Talis Abolins, Brock's appellate lawyer.

In 2002 the Legislature adopted a new Uniform Parentage Act, which made a number of these issues moot.