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Court says father owes support, despite deal

After nine years of marriage and unsuccessful attempts to have children, Chukwudera B. Okoli and his wife, Blessing, separated. At the time, they were on a waiting list for donated eggs to pursue fertility treatment.

When eggs became available the following year, Blessing Okoli sought her husband’s consent to begin the process of in vitro fertilization. He agreed, but only on the understanding that he would not be legally responsible for any child.

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But on Tuesday, the Massachusetts Appeals Court ruled that the husband must pay child support for twin girls, born in 2003 after being conceived through IVF using donor sperm and eggs.

Despite a written agreement between the estranged couple that absolved the father of financial responsibility, the court determined that the husband’s permission for the IVF procedure made him the legal father.

“Simple consent to the procedure is enough to confer parental status,’’ stated the decision, which upheld a 2009 family court ruling. The wife had sought child support in 2006, spurring the legal battle.

The lawyer for Blessing Okoli, Collins Akukwe, said he was pleased by the decision, saying the husband had been vengeful in trying to sidestep responsibility for the children.

“He went all out against her,’’ said Akukwe. His client has been receiving child support and is raising “two beautiful girls,’’ he said. “She is doing all she can for them.’’

The court held that the written agreement between the estranged couple was invalid and said the father’s intent was beside the point. His actions resulted “in the creation of a child, and the law will attach parental responsibilities as a result,’’ the decision stated.

Maureen McBrien, a family law attorney and a member of the Massachusetts Bar Association’s family law section, said she was not surprised by the decision.

“Any child born to a married couple in Massachusetts is presumed to be a child of the marriage,’’ she said. “It’s well settled you can’t bargain away the rights of a child to support.’’

When asked in 2001 for consent to the IVF procedure, the husband initially balked, according to the ruling. But he relented when his wife threatened to withdraw her support for his citizenship application. Both parties are from Nigeria.

With the assistance of a family friend, the couple signed an agreement in which the husband gave his consent in exchange for his wife’s “continued support of his citizenship application.’’

“She consistently threatened him that if he refused to do what she wanted, she would withdraw her support of his application,’’ the family court judge wrote.

The agreement stated that the husband would not have any financial obligations for the children and that the wife “will not at any time ask or sue for any other financial obligation.’’

The wife assured the husband “she would never seek child support,’’ the decision stated.

Akukwe disputed this, and said the husband had signed numerous consent forms over years of IVF treatment and knew what they meant.

The side agreement, he said, was never binding. “This is the law,’’ he said. “To suggest that this is a trick is wrong.’’

The wife eventually withdrew her support for her husband’s visa application, but he became a citizen on his own.

John R. Ellement of the Globe staff contributed to this report. Peter Schworm can be reached at schworm@globe.com. Follow him on Twitter @globepete.
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