Should sperm donor owe child support? Ruling will be in NC, but Virginia law will apply

Virginia, as that state’s venerable motto tells us, “is for lovers.”

Fortunately for Anthony “A.J.” Garrelts, it’s an accommodating place for sperm donors, too.

Because he crossed the Virginia state line a decade ago to supply a key ingredient in helping a friend get pregnant, Garrelts appears to have avoided being branded a “deadbeat dad” by the state of North Carolina and won’t have to pay out almost $14,000 in child support, according to a new ruling by the N.C. Court of Appeals.

In an odd how-do-you-do, North Carolina’s second-highest court said Virginia laws, which treat sperm donors as different legal entities than fathers, govern the case.

North Carolina statutes, on the other hand, do not draw legal distinctions between biologically fathering a child and qualifying as a child’s actual father. In fact, the laws say nothing at all.

“North Carolina has simply not addressed the issue of assisted conception even though it’s been around for a quarter of a century,” said Mitch Styers, a member of Garrelts’ North Carolina defense team.

The case — as well as a child now living in California — have been more than a decade in the making.

In 2010, according to court records, Garrelts became friends with Ericka Glenn, such good friends that when Glenn and her partner wanted to start a family, they asked Garrelts to provide the sperm. He agreed.

Glenn lived in Virginia, and that’s where the artificial insemination and conception occurred. It was also where the child was born in December 2011, according to the case record.

Glenn was the only parent listed on the Virginia birth certificate. In late 2012, Garrelts joined Glenn and her partner in a Virginia courtroom to “voluntarily sign over his parental rights” so the Virginia couple could formally adopt the child.

Which all seemed simple enough. But then Glenn moved to California in 2014 and at some point began receiving financial aid from her new state. To qualify for the help, according to Styers, Glenn first had to provide the name of her child’s father. California passed along the information to North Carolina.

What started as a private and deeply personal agreement among friends was about to become a public dispute.

Legal border war

By now, Garrelts was living in Norlina, about an hour north of Durham and just south of the Virginia line.

In March 2019, the Warren County (N.C.) Department of Social Services took Garrelts to court, alleging in a complaint officially filed in Glenn’s behalf that he owed a significant amount of overdue child support — $13,643 in all. According to Styers, Glenn did not initiate the action.

The DSS complaint went before Warren County District Court Judge Adam Keith last July. A legal border war quickly surfaced.

Styers argued that since all the key moments in the case — insemination, conception and birth — had occurred in Virginia, those laws should apply. In Virginia, a sperm donor is not considered a parent unless he is the spouse of the woman being impregnated. Thus, Styers argued, Garrelts did not owe any child support.

Not surprisingly, the attorney for DSS thought differently, saying Keith, as a North Carolina judge, had no obligation to follow Virginia law.

Because the child-support legal action against Garrelts had been launched in North Carolina, that state’s law should decide the case, the DSS attorney argued. And because North Carolina makes no special provisions for sperm donors, Garrelts was indeed the child’s father and should pay up, the attorney said.

“The judge was sympathetic, more than sympathetic,” Styers told the Observer during a Friday phone interview. In the end, however, Keith ruled that N.C. law gave him no alternative: Garrelts’ sperm, Garrelts’ child.

The judge ordered Garrelts to pay the overdue $13,643 plus cover the cost of the child’s medical insurance as well as another $50 a month in new child support.

Last week, a three-judge panel of the N.C. Court of Appeals had its say. In a unanimous opinion authored by Judge Darren Jackson of Wake County, the court ruled that Virginia law would indeed have the final word.

In doing so, the court cited the legal doctrine of lex loci, which gives precedence to the law in place where the deal is signed or the transaction occurs, especially if it involves a pregnancy.

According to Jackson’s opinion, lex loci should apply in cases “affecting the substantial rights of the parties ... A law that formally adjudicates a person’s status as a parent (or non-parent) of a child meets this definition, as parenthood is one of the most fundamental protected rights in our entire legal system.”

Artificial insemination precedent

As precedent, Jackson’s opinion cited a 1990 artificial-insemination case that also pitted conflicting state laws against each other. In it, a woman gave birth to a child in Florida after using the sperm of another man beside her husband that she’d received at a pregnancy clinic.

The marriage fell apart after the child was born. The mother moved to Illinois and filed for child support. The husband, who remained in Florida, said he should not have to pay because he never agreed to the insemination procedure in the first place.

The Illinois trial court said the father was liable for the money. But on appeal, that state’s Supreme Court said Florida law, which recognized children born from artificial insemination as legitimate only if both parents agree to the procedure, should have standing because that state had “the more significant relationship to the dispute.”

Jackson said the same principal applied in Garrelts’ case.

“If we were to accept DSS’s arguments — and hold that a paternity action is simply governed by the laws of whichever state the plaintiff chooses to sue in — this would encourage forum-shopping, as a parent seeking a paternity determination could simply travel to whichever state has the most favorable laws.”

The ruling sends the DSS case back to Warren County for a new hearing.

Same N.C. judge. Same N.C. courtroom. But Virginia law will apply.