Question: Does an ex-husband have to pay child support as the parent of two children conceived through artificial insemination during his marriage to Mother?
Father and Mother were married in 2001. Subsequently, Father and Mother had a discussion about having children, and Father consulted a doctor to determine whether a prior vasectomy could be reversed. The doctor told Father and Mother that a successful reversal was unlikely. As a result, the couple began investigating the possibility of artificial insemination. A longtime friend of Mother’s became aware of the situation and told Mother that her husband would provide the sperm for the artificial insemination. With Father’s approval, Mother obtained a sperm sample and used a syringe to inject the sperm into her vagina. The procedure resulted in the birth of a male child in 2004. Father supported the child, holding the child out to the world as his own. Later, Mother discovered that Father had kept the paraphernalia from the sperm bank because he was concerned that his son would be an only child. Soon thereafter, Mother again used a syringe to insert sperm into her vagina. This procedure resulted in the 2006 birth of a female child. Again, Father supported both children and treated them as if they were his biological children. After he and Mother separated in 2009, Father exercised equal time visitation with the children and continued to financially support the children.
On October 10, 2010, Father filed a verified petition for dissolution of the marriage. In the petition, he stated that two children were born to Mother during the marriage…. The children are not the biological children of Father. Nevertheless, Father continued to exercise visitation rights until February of 2012. The court held a final hearing on the petition and found, among other things, that the children were acknowledged by Father as his children, he supported said children, and he consented to the procedure by which they were created. That said children are, by all rights and purposes, legally the children of Father. The trial court ordered joint legal custody and that Father had to pay child support.
On Appeal, the Father argues that neither child was a “child of the marriage” under the Dissolution of Marriage Act which states that a “child” of the marriage includes children born or adopted during the marriage of the parties. Father also cites the case Levin v. Levin, 645 N.E.2d 601, 605 (Ind.1994) for the proposition that a child conceived through artificial insemination is a child of the marriage only when both parties knowingly and voluntarily consent to the artificial insemination. He maintains that there is insufficient evidence to support a conclusion that he knowingly and voluntarily consented to the artificial inseminations, even though Mother testified that Father knew of the artificial inseminations, helped her conduct research to determine the paraphernalia used to facilitate the artificial insemination, and consented to both inseminations. Mother also testified that Father saved the paraphernalia for the second insemination so that the first child would not be an only child. Father is asking us to disregard Mother’s testimony and credit his testimony that he did very few of the things attributed to him by Mother. Thus, Father argues that he did not knowingly and voluntarily consent to the artificial inseminations. Assigning credibility is not a function for this Court, and so we reject Father’s invitation to do so. The trial court’s findings are supported by Mother’s testimony, and the findings support the trial court’s ultimate conclusion that each child was a child of marriage. Accordingly, both Father and Mother have an obligation to support the children. Engelking v. Engelking, 982 N.E.2d 326.