While presumably some people who buy things on Craigslist (or similar Internet sites) are disappointed because they got less than they bargained for, William Marotta might lodge the opposite complaint. He answered an ad posted by two lesbian women who were looking for a sperm donor. Although the three adults signed agreements making clear that Marotta’s role was to cease after he donated the sperm, the state of Kansas claims that he is the father of the child that was conceived with his sperm. And the state has just won the first round in the litigation (which Marotta has said he will appeal). In Kansas v. W.M., a trial court ruled that the agreements between Marotta and the two women are not enforceable, and that he is liable for child support dating back to the child’s birth.
A Thoroughly Modern Conception
J.L.S. and A.B. were in a committed lesbian relationship when they decided to become parents together. In 2009, they placed an advertisement on Craigslist, in search of a man would make a private sperm donation to them. Although this may sound unusual, it is an increasingly common practice among prospective parents seeking to save money or seeking to meet a prospective donor in person, rather than simply relying on information provided by a cryobank about an anonymous donor. (As I explain in a previous column, there are a variety of websites designed to match women with potential donors, and there are a variety of reasons why people might turn to such a site.)
In this case, the two women briefly corresponded with Marotta before meeting with him in person and agreeing to proceed with the donation. At the first meeting, Marotta was presented with a sperm donor contract, which he believed had been downloaded from the Internet. He did not seek legal advice as to the enforceability of such a contract.
After signing the contract, a week after the initial meeting, Marotta delivered sperm in a specimen cup to the women’s home on each of three consecutive nights. The women then performed a series of self-inseminations on J.L.S., through which she became pregnant. She then gave birth to a child in December 2009.
The Donor Is Outed—And Sued for Child Support
A year after the child was born, the two women broke off their relationship. After the breakup, J.L.S. applied for welfare benefits on multiple occasions. On forms requesting her to identify other household members, she did not include A.B. On forms requesting that she identify the child’s father, she indicated that the father was an unnamed “donor.” At one point, she indicated the father was an “anonymous donor.”
However, Marotta’s identity was eventually revealed when J.L.S. finally complied with the request by The Kansas Department for Children and Families (DCF) that she turn over a copy of the sperm donor contract. Once she did, so, it became clear to both that there was another female intended parent and that the donor was not anonymous.
DCF filed a petition to establish Marotta’s paternity—a necessary step towards obtaining a child support order against him—and requested an order of support, payment for expenses of the child’s birth, and costs for pursuing the action against him. A regular (and sometimes controversial) part of state welfare programs is that applicants with children must assign the right to establish paternity and collect support to the state agency, which can pursue claims to offset its own expenditures on benefits. (A.B. was also brought into the proceeding, as she sought to be recognized as the child’s second legal parent, but her claims were bifurcated and deferred.)
Kansas Law on Sperm Donors
Like many states, Kansas has a specific provision of law dealing with sperm donors. Under Section 23-2208(f) of the Kansas code, a “donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor’s wife is treated in law as if he were not the birth father of a child thereby conceived, unless agreed to in writing by the donor and the woman.” (emphasis added)
This “non-paternity” rule is typical in that it (1) protects sperm donors from unwanted responsibilities for a child and (2) protects women who conceive with donated sperm from unwanted intrusions by another adult who might claim to be a parent. The general rule comes with an exception, which allows the woman and the donor to opt out of the non-paternity rule in cases where both intend to parent any child who is conceived with the donated sperm.
The fact that Marotta was a known donor makes no difference. The statute does not differentiate between known and anonymous donors. (The same is true in most states.) The catch for Marotta is that the sperm was donated directly to the women, rather than to a licensed physician as the law required. Instead, the women performed the insemination at home, without any medical assistance. Under the plain language of the statute, neither the biological mother nor the sperm donor is protected by the non-paternity rule.
The question, then, is whether the agreement between the donor and the mother, providing that Marotta would have no rights or responsibilities with respect to any resulting child, protects him from the state’s claim that he owes child support. DCF argued that the statutory bar to paternity cannot be applied to Marotta since the two women admittedly did not comply with the statutory requirements.
All three of the adults involved in the child’s conception objected to DCF’s motion for summary judgment. J.L.S. opposed DCF’s motion on the grounds that she did not intend Marotta to be a father and that “introducing a virtual stranger into the family unit would violate the right to family integrity.” A.B. objected on grounds that recognition of Marotta as a presumptive parent would mean that she would be replaced, since a child cannot have three legal parents. (A discussion of California’s unusual new law allowing three legal parents is discussed here.) And Marotta objected on the grounds that the parties had an enforceable agreement that precluded, and still precludes, his being recognized as a legal father.
The Court’s Ruling in Kansas v. W.M.: The Non-Paternity Rule Does Not Apply
As described by the trial judge, the issue in this case (or at least this part of this case) is whether Marotta’s status “is that of a sperm donor or birth father, even in the face of a written non-paternity agreement, when his semen was used in an artificial insemination procedure that resulted in a live birth but was not provided to a licensed physician.”
In the court’s view, this question invited a clear answer: Marotta is a birth father, subject to the rights and responsibilities of parenthood.
First, the non-paternity rule, adopted as part of a comprehensive parentage act in 1994 and based on a model act adopted by many other states, imposed clear requirements. Per its terms, a sperm donor is relieved of legal parent status (and deprived of concomitant rights) if and only if the semen is provided to a licensed physician. The statute is written in clear, directive terms and reflects a conscious policy choice by the Kansas legislature to “afford[] a woman a statutory vehicle for obtaining semen for AI in a manner that protects her and her child from a later claim of paternity by the donor.” Similarly, the judge wrote, “the legislature has provided a man with a statutory vehicle for donating semen to a woman in a manner that precludes later liability for child support.” Whether or not the parties were ignorant of this legal option at the time is irrelevant, in this court’s view.
Second, the court cannot read the non-paternity rule to apply to all sperm donations when the legislature has made clear that a licensed physician must be involved for the non-paternity rule to be triggered. The Kansas Supreme Court rejected an attempt in another sperm donor case, In re K.M.H., to give the provision something other than its obvious meaning. There, the donor, seeking to avoid application of the non-paternity rule (and claim parental rights), argued that because he did not personally provide the semen to the physician, the statutory requirements had not been met. He had provided the semen to the woman, and she had provided it to the physician. But the court refused to apply a cramped interpretation of the statute, unsupported by its text. Instead, the court gave the non-paternity its clear, bright-line intent, an approach for which it found support in a very similar case in California, Jhordan C. v. Mary K. (1986).
The Ruling in Kansas v. W.M.: Parental Obligations Cannot Be Terminated by Contract
Marotta’s second line of argument is based in contract. He argued that because the written agreement he had with the two women made clear their collective intent that he not have parental rights or responsibilities, he cannot be deemed a legal parent. The judge, however, rejected this claim, concluding that a “parent may not terminate parental rights by contract, however, even when the parties have consented.”
In reaching this conclusion, the judge noted that the termination of parental rights is strictly controlled by statute in Kansas. It can only happen three prescribed ways: (1) relinquishment and adoption; (2) adjudication of a child in need of care; and (3) through a judicial finding of parental unfitness. In the court’s view, these are the only mechanisms for relieving a parent of obligations. To allow otherwise would compromise the child’s right to financial support from its parents, a right that the state does not take lightly.
In a recent case, the Kansas Supreme Court considered the question of creating parental rights by contract. In Frazier v. Goudschaal (2013), which I discuss in greater detail here, the court enforced a lesbian co-parenting agreement that gave the biological mother’s partner presumptive mother status based on the written parenting agreement between the parties, executed when they were living together and clearly intent on raising a child as a couple. When the couple broke up, the biological mother argued that her partner had no enforceable rights and that to give her any would infringe her constitutional parental rights. But the court held that she had waived her right to exclusive parental status by entering the written agreement with her partner.
The court in W.M., the sperm donor case, does not cite or mention Frazier. However, together the two rulings suggest that, under Kansas law, parental rights may be created, but not negated, by contract. This would be consistent with the general policy favoring support for children and may also reflect the particular issues raised by lesbian co-parenting arrangement, in which only one of two intended mothers will have a biological tie to a child.
A further question—perhaps to be determined at a later stage of the W.M. case—is what this ruling entails for A.B., the lesbian co-mother in this case. Like the lesbian co-parent in Frazier, she had at least some type of written agreement with J.L.S. to share parental rights. But if Marotta is the father, and J.L.S. is the mother, and Kansas limits children to two legal parents—where does that leave A.B.?
Conclusion
This case has received tremendous media attention from the beginning. The whole idea of advertising for sperm on Craigslist is unfamiliar and thus interesting. But the real lesson, for which Marotta may pay an expensive price, is that the decision to conceive with donor sperm has legal, in addition to medical, consequences. Parent-child relationships are regulated by the state and give rise to a comprehensive set of rights and obligations. And while parties’ intent can be relevant to creating legal parent-child relationships, particularly as social changes and reproductive technology makes it easier to separate conception from sex and marriage, there is no guarantee that parentage is a matter of self-determination. Individuals seeking to donate or utilize donor sperm should stop first at the lawyer’s office to be apprised of the consequences of making the next stop.
Why does this article protect the names of the mothers, but not that of the sperm donor, who arguably is the ‘most innocent’ party of the adults, and the only one who wanted not to be involved in the child’s future?
Agreed. This article is poorly written, please report in an unbiased manner.
Other jurisdictions have reached different outcomes. See Mintz.
Also the UPA should be gender neutral, what about the rights of the intended mother, not only under the agreement but as a parent of the child for the last four years.
I believe that legally she could sign an agreement assuming his paternity rights, or claim that as the intended parent she had already done so and was performing the role in his stead for at least one year.
Stupid courts/government putting their hands in everyone’s lives where they clearly do not belong. All parties should have been protected from the government intervening because they signed an agreement stating how it would be. That should be the end of it! Period!! We should all need to pay tons of money to attorneys or doctors just to have life as it ought to be. Dumb, dumb move on the part of the state.
So in Kansas, sperm must be blessed by (“handed over to”) a licensed physician in order to protect the donor. Why a physician? Is the act of impregnation an operation? Is sperm a medication? The requirement seems arbitrary to me. Perhaps physicians want to be like bankers: in control.
I don’t think anyone really cares about the physician, this is about the court (judge) punishing a same sex couple. If Marotta had donated to a man/woman – the man could have signed the birth certificate acknowledging the child and Marotta would be off the hook. Heck, even if the other man hadn’t know a sperm donor had been used and thought the kid was his, by signing the birth certificate he’d have taken Marotta off the hook. So it’s pretty obvious that Kansas won’t let the other lesbian mother sign the birth certificate and treats woman as being less able to take responsibility (via the birth certificate) then any man. In the judge’s mind obviously a man (grownup) has to be involved in creating/caring for a child.
Since marriage is now legal in KS for same sex couples, I would think that as long as the same sex couple is married, they would now both be allowed to both sign the birth certificate and both would establish parental rights. I’m sure the state would still try to go after the donor based on the antiquated statute they got Morotta with.
Uhm, you’re missing the entire point and ACTUAL message, which is that a MAN MUST PAY for CHILD SUPPORT, no matter what. How you can draw the conclusion that women are the victims here is unbelievable, a sterling example of Misandry at it’s finest. This man must now pay CS…not the “poor women”. Are you that dense?
The woman intended to assume the parental role of father and all that entails (including child support). She has been acting as the child’s father for years. At the very least, at last one year should not be required of him as the woman in question fulfilled his parental responsibilities for him, as per their agreement.
Kansas……less progressive than you ever thought possible
Ridiculous, medical industry lobbying put laws in place to force people to pay thousands of dollars to execute the most basic of human rights. End these laws now. No wonder we pay the most for healthcare in this country!
This is the problem with liberals! Too stupid
I think all of the comments here are missing the real point. This is not about liberals, conservatives, medical lobbying, or discrimination against gays. It’s actually much simpler: the child support system is simply the government’s way of shifting the financial burdens of poor single mothers (or, less commonly, fathers) away from its own coffers (i.e. the welfare system). This is perhaps the most blatant and egregious proof of that imaginable. If there wasn’t a welfare claim at stake, the government certainly would not be forcing this man to pay child support that the woman doesn’t even want. While one can try to make a moral / ethical / sexual responsibility argument for child support payments, the reality is that the government’s enforcement of the system is simply a protection of its own financial interests. The fact that well-to-do single parents can claim the same percentage-of-income payments from the non-custodial parent is simply a way of making the system look legitimate and equitable to all.
More unintended consequences of socialist wealth transfer programs. Most likely those who established the welfare programs, here specifically the aid for dependent children benefits programs, had good intentions. We don’t want children to go without food, clothing and shelter, and other necessities, and don’t want parent/s to suffer the humiliation of having to go beg from churches and private assistance agencies.
Yet it is unlikely that they thought of a situation in which a parent cannot give up parental rights and responsibilities to a natural parent of the child. You would think that a man who wanted to have parental rights to a potential child would marry the potential mother. You would think that if a woman wants her potential children to have a father, that she would not consent to receive his sperm without first requiring him to marry her. That’s a primary reason we have marriage: to provide protection for women and children by men having to marry women before having sex with them. By marrying a woman, he agrees to share in the support of her and any children they produce together.
But if a woman consents to allow a man to do with her what may generate a child without first marrying him, why is she not on her own, at least regarding him? If she is willing to fail to claim her rights to his sharing in her and her child’s support, where does the government get a right to take it from him?
The institution of marriage is under attack and the state, by compelling nonconsenting (through marriage) sperm donors to be supporting fathers, becomes a major attacker in the degradation of marriage.
It should be presumed that women of an age when they are normally able to bear children have basic knowledge of how they are generated. It should be presumed that if a woman consents to sexual intercourse without first requiring the man to marry her accepts the responsibility imposed upon her by biology. That her relationship with the man is legally that of a sperm donor and a sperm recipient. That what she (and her natural physiological processes) do with a donation (or sale) of semen is her business, not the donor’s, absent a contract of marriage between her and him.
If the state decides, through its legislative process, to go into the charity business, it should have no more right to collect reimbursement for its charitable gifts from another, uninvolved party, than does a private charitable organization.
As fornication (sexual intercourse between parties not married to one another) has been decriminalized, not punished even though a few jurisdictions may still have anti-fornication laws, all acts of sexual intercourse should be presumed consensual absent proof to the contrary. Feminism asserts the legal equality of men (males) and women (females). But very many feminists insist that women of responsible age are incompetent children when it suits them. [Not all feminists are unreasonable and illogical about everything.] If women are to be regarded by the law as the same as men, they should have the same responsibilities as men. If the state attempts to compensate for the biological differences between men and women, it cannot treat them the same before the law. It must therefore treat women as incompetent children in those aspects, the very thing feminism has opposed from its beginnings.
Whereis A.B.’s financial responsibilty in all of this? Why did she abandon “her” child financially. If she did not abandon her child and leave J.L.S. and the child in a poor economic state then Marotta wouldn’t be gouged by the Kansas who doesn’t want to pay for the child. I think Marotta and J.L.S. have a case for suing A.B. for child support. Upon winning A.B.s paycheck should be docked and given to Marotta to cover his end of the support obligation and the rest should go to J.L.S. to support the child. Or A.B. should “man up” and sign a stipulated agreement entered with the Kansas Court committing to such.
Men should be allowed to opt out of being a parent at birth of the child. This donor did not wish to be a parent but was helping out two women to have a family. Legal arguments are interesting but bottom line here is that men really have no rights when it comes to reproduction – these are imposed by the state. There was a case in Iowa? I believe of a 14 year old male having sex with a 21 year old? woman. State came after him for child support 10 years later when the woman went on welfare. On one hand he was not able to legally consent to sex as under state law he was under the age of consent; yet the state then proceeded to make him financially responsible for the product of the statutory rape and went after him for payment. He ‘manned up’ and paid; had he not would he have been thrown in jail as a deadbeat dad? Wonder why someone said ” the law is an ass”.
Why is the man expected here to be the only adult? Expected to step in and fix a problem created by these acronymical lesbians. Why is his name in full? Is it a shame tactic?