Unintended Fatherhood? Kansas Court to Determine Sperm Donor’s Paternity

January 9, 2013

On Tuesday, January 8, a hearing in Shawnee County (Kansas) District Court is scheduled to determine whether a sperm donor may legally be determined to be the father—and, therefore, responsible for child support—of a child conceived via artificial insemination. See, e.g., 2012 WLNR 28090983.

In 2009, William Marotta answered a Craigslist ad for sperm donation placed by a lesbian couple—Jennifer Schreiner and Angela Bauer—who wished to conceive a child. The sperm donation resulted in the birth of a girl, now three years old. Schreiner and Bauer have since separated, and Schreiner, the birth mother, has sought financial assistance from the state of Kansas to care for the child. To lessen the state’s burden, the Kansas Department for Children and Families filed a petition last October requesting Marotta be named as the child’s legal father, under Kansas Statutes Annotated § 23-2208, which involves scenarios in which paternity may be presumed.

Marotta contends that subsection (f) of § 23-2208 applies to absolve him, as a sperm donor, of paternity. That subsection, rather than listing a paternity presumption like other subsections, mandates definitively that a sperm donor shall not be deemed the father of any child(ren) resulting from his donation, unless the donor and the woman agree to the contrary in writing. Not only did Marotta opt to forego a written instrument accepting paternity, he did the exact opposite in signing a written agreement with Schreiner and Bauer wherein Marotta disclaimed all parental rights and associated obligations.

But, importantly, § 23-2208(f) only mentions sperm donations “provided to a licensed physician.” Therefore, the state argues, the subsection does not apply to shield Marotta from fatherhood, because he, Schreiner, and Bauer failed to use a doctor in their efforts at artificial insemination. Indeed, the parties have admitted as much—that after agreeing to be a sperm donor, Marotta simply dropped off a container of semen at the couple’s house and the two women achieved the insemination themselves.

I will be curious to read of the conclusion reached by the Shawnee County District Court and the reasoning it used in so doing. One case that is likely to be addressed is In re K.M.H., 169 P.3d 1025 (Kan. 2007), where the Supreme Court of Kansas held Kansas Statutes Annotated § 38-1114(f) (later renumbered at § 23-2208(f)) applied to bar a sperm donor from seeking paternity. Like Marotta, the donor in In re K.M.H. did not deliver his semen sample to a medical professional. A licensed physician was involved, however, in the insemination process—the donor gave his container of sperm to the woman hoping to get pregnant, and she, in turn, provided it to the doctor who performed the insemination—and the court deemed this sufficient to bring the parties’ actions within the scope of § 38-1114(f).

In re K.M.H. gives a good overview on the development and state of paternity laws regarding sperm donation existing at the time of the opinion, both in Kansas and nationally. In re K.M.H. at 1033-39. But if you are interested in researching additional related decisions that have come out in the five years subsequent, you may find the following search of interest:

Query: status presum! relationship /5 parent! patern! matern! don! father! mother! & (sperm semen /7 donat! donor) (assist! artificial /5 reprod! fertil! conce! inseminat!) & (self /5 administer!) (#no #not #never #without fail! lack! /7 doctor physician surgeon “medical professional”) & DA(aft 10/26/2007)
Content: Cases
Jurisdiction: All State & Federal

The very first decision in the list of 52 resulting cases is E.E. v. O.M.G.R., 20 A.3d 1171 (N.J. Super. Ct. Ch. Div. 2011), wherein, faced with a similar statute to the one in Kansas, the New Jersey court found the state law, otherwise shielding a sperm donor from paternity, does not apply if a licensed doctor was not involved in the insemination.

Many states’ laws on this topic are derived from the Uniform Parentage Act (UPA). See, e.g., id. at 1174; In re K.M.H. at 1034. The UPA, as originally promulgated in 1973, mandated the involvement of a licensed physician if a sperm donor is to relinquish paternity. In re K.M.H. at 1034. Notably, however, the revised UPA deleted any such reference to doctors. Run the following searches to see for yourself:

Query: donor donat! semen sperm egg ova ovum /p doctor physician “medical professional”
Content: Uniform Parentage Act (1973)

Query: donor donat! semen sperm egg ova ovum /p doctor physician “medical professional”
Content: Uniform Parentage Act (2000) (Last Amended or Revised in 2002)

Lastly, for a listing of all state statutes on the topic that also include reference to doctor- or physician-inclusion in the process, try the following query:

Query: status presum! relationship /5 parent! patern! matern! father! mother! don! & (sperm semen egg ova ovum /7 donat! donor) (assist! artificial /5 reprod! fertil! conce! insemin!) & SD(doctor physician surgeon “medical professional”)
Content: Statutes & Court Rules
Jurisdiction: All States