Two interesting cases have come under the spotlight. The first involves a sperm donor, who responded to an advertisement on Craig's List and agreed to assist two lesbians to have a child. Before making the donation, he signed a contract stating that he would assume no financial responsibility for the child. He is now being called upon to maintain the child, and there are some reports which suggest that he may be liable to do so under Kansas law.

In the second case, the Indiana Court of Appeal ruled that two children who were conceived as a result of a sperm donation from a family friend had become children of the family. Therefore, although the husband argued that they were not his biological children, the court ruled that both the husband and the wife were liable to pay maintenance.

The question is what outcome would be likely in Jamaica in each scenario outlined above; and the answer is to be found in the Maintenance Act. The simple starting point is that each parent is obligated to the extent that he or she is capable to maintain that parent's unmarried child, who is a minor (that is, under 18 years of age) or is in need of maintenance by reason of infirmity of disability.

The act contains an expansive definition of 'parent' to include the persons whose names are on that child's birth certificate, a person who has admitted paternity or against whom a court has made a paternity order and a child of the marriage or cohabitation.

Although the act makes no specific provision in relation to children conceived through sperm donation, in vitro fertilisation or other scientific method, the possibility that a paternity order could be made against a sperm donor means that he could be saddled with a maintenance order although he had and has no intention of ever becoming a father to the child. Even if that donor signed a contract (as in the second case) with the child's mother stating that he would assume no financial responsibility for the child, it may be argued that the mother is incapable of binding the child to that agreement. In effect, although the mother may not be able to avoid the consequences of such a contract, the act allows a maintenance application to be made on a child's behalf by someone other than that child's mother.

should not be liable

The sperm donor's reprieve may be found in the fact that a Jamaican court considering a maintenance application is obliged to examine any fact or circumstance which the justice of the case requires to be taken into account. Therefore, an argument could be advanced that the sperm donor should not be liable to pay maintenance based on the manner in which the child was conceived.

If the second case was heard in Jamaica, it is likely that the court would have made a similar order to that made in the Indiana Court of Appeal. If the court was satisfied that the husband had maintained the children during the course of the marriage and separation, and even obtained an access order during the divorce proceedings, it would be highly unlikely that the issue of paternity would have influenced the court to overlook the husband's obligation to maintain children of the family.

I suspect that courts will soon be asked to consider many interesting fact scenarios for which existing legislations make no specific provision. As scientific methods of conceiving children become more commonplace. It is hoped that our legislators will recognise and proactively address the need to revise the laws as it becomes necessary to do so.