OLYMPIA – A married man who conceived two children with his mistress through in vitro fertilization is the legal father of both and must pay child support, the state Supreme Court ruled Thursday, overturning an appellate court decision that the man was merely a sperm donor.
The unanimous decision by the high court upheld an earlier trial court ruling that ordered Michael Kepl to resume making payments to his longtime girlfriend, 48-year-old Teresa Brock of Puyallup.
“At issue is whether … a biological father is the legal father of two boys conceived by means of assisted reproductive technology by a woman to whom the man was not married,” the court wrote.
Kepl, married and the father of a girl with his wife, provided Brock with a sperm donation through a University of Washington fertility clinic, and she gave birth to Joey Kepl in 1998 following in vitro fertilization. Kepl and Brock had been trying to have a child since 1995, and their relationship continued through 2001, according to court documents.
Kepl took out a life insurance policy benefiting the boy, maintained regular contact, paid as much as $650 a month in unofficial child support and signed a sworn affidavit of paternity.
With the affair foundering in 2001, Brock had a second child via in vitro fertilization, using Kepl’s sperm. She said he approved of the second pregnancy, but he denied it. Brock said Kepl continued to pay child support, even increasing it to nearly $1,000 until his wife learned of the affair in 2002. He then cut off all contact and payments.
Kepl told the court that he did not intend to be a parent and donated sperm only as a friend. Brock said that before Kepl’s wife learned of the affair, he was very close to Joey, now 6.
“He was the most loving father,” Brock said. “To just walk away and say, ‘I don’t love him, I never intended to be a father to him,’ is very hurtful.”
The high court heard the case after a three-judge panel of the Court of Appeals reversed the trial judge’s decision that Kepl had to pay support. In May 2004 the appellate court ruled that Kepl was protected by a state law that shields a sperm donor from responsibility or custody rights support unless he and the biological mother have signed a fatherhood rights contract.
But the high court said paternity of the first child was clear “based on overwhelming evidence, including the numerous photographs, letters and cards submitted and the undisputed fact of the long-term romantic relationship between the parties,” the court, led by Justice Barbara Madsen, wrote.
Kepl signed a paternity affidavit at birth for Joey, but did not for the second child, 3-year-old Dan, who was born after the relationship between Brock and Kepl had ended. Kepl said he signed the paternity affidavit and provided financial support to keep Brock from telling his wife about their affair, according to court records.
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