Who’s Your Daddy?
With advances in technology, the nation’s slow but undeniable social acceptance of same sex couples, and the Supreme Court gearing up to hear two cases relating to marriage equality (United States v. Windsor and Hollingsworth v. Perry), it’s no surprise that courts across the country are increasingly being presented with novel issues involving assisted reproduction.
While the first child conceived through artificial insemination in 1953 was viewed as a miracle, by the late 1980s, when there were roughly 65,000 births in the U.S. as a result of AI, the procedure began attracting legal attention.
Back then, the legal questions surrounding AI were relatively straightforward, as it was typically a husband and wife seeking medical assistance to become parents.
Fast forward to 2013.
The “traditional” infertile husband and wife situation seems downright quaint, and the scenarios, today, are almost infinite.
Each year, over 1.2 million women in the U.S. seek treatment for infertility. Some are in casual relationships, some are in same sex relationships, and some are not in relationships at all. Some get sperm donations from friends and some visit sperm banks; some also go through relatively extreme lengths to secure sperm. With a myriad of possibilities, it is often difficult to determine who a child’s legal father is.
Angela Bauer and Jennifer Schreiner, a lesbian couple from Topeka, Kansas, posted an ad on Craigslist offering $50 for a sperm donation. William Marotta, 46, saw the ad and decided to donate his sperm to the couple — heck, he said he’d do it free of charge.
Prior to donating his sperm, the couple and Mr. Marotta entered into a contract, which provided that Mr. Marotta would have no parental rights or obligations for any child that resulted from his generous gift. In other words, he would have nothing to do with, and would not be responsible for, any child that was born from his sperm.
The contract could not have been clearer, and said, in pertinent part, “Jennifer and Angela further agree to indemnify William and hold him harmless for any child support payments demanded of him by any other person or entity, public or private, including any district attorney’s office or other state or county agency, regardless of the circumstances or said demand.”
Ms. Bauer and Ms. Schreiner used Mr. Marotta’s sperm the “old-fashioned” way — no expensive doctors for them. They just used the “turkey-baster” approach, and it worked — nine months later they were greeted with a little bundle of joy.
However, the couple fell on hard(er) times and in 2012 sought state assistance for the child. Before coughing up any money, the Kansas Department of Children and Families demanded the name of the child’s “father.” Months later, the Department sued Mr. Marotta claiming that he owed the state $6,189 — the amount that the state had expended on the child to date.
The media went with the travesty-of-justice angle for the story. We’ll do a legal analysis.
Kansas’ Domestic Relations statute §23-2208 states that “the 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).
But, alas, Mr. Marotta didn’t provide his sperm to a physician.
A 1986 California case in the Court of Appeals, First District, Division 5 involved a donor providing sperm to a lesbian couple. California has a statute similar to Kansas’ AI statute, in that it, too, requires that the donor, in order to be “off the hook” for parental obligations, provide his sperm to a licensed physician. The court held that because a doctor wasn’t involved in creating the child, the case fell outside the scope of the statute. The donor was now a (legal) daddy.
Consider also, a 1994 Ohio Court of Common Pleas case that involved an unmarried woman inseminating herself with a donor’s sperm. Ohio, like California and Kansas, has a requirement that the insemination be conducted under the supervision of a physician in order to relieve the donor of legal obligation. The court held that the statute was inapplicable because of the lack of a physician’s involvement; it further held that the statute would violate due process if applied to this donor because the parties had entered into an agreement that there would be a relationship between the donor and the child.
What we see from these two cases, even though they are not binding on the Kansas court, is that if a physician is not involved, the donor does not enjoy protection from the statute. Additionally, we see that courts may be willing to give credence to agreements that contravene the statute.
Will this be enough to get Mr. Marotta off the hook?
While the court may entertain a contract between the parties, if we take a second look at the indemnification provision in their contract, it seems as if Ms. Bauer and Ms. Schreiner were trying to indemnify Mr. Marotta for something over which they had no control. How could the ladies hold Mr. Marotta harmless from “support payments demanded of him by any other person or entity?” Especially when they have no money.
Unlike the California and Ohio case discussed above, this case involves a third party interest — The Department of Children and Families. While the contract surely speaks to the intentions of Ms. Bauer, Ms. Schreiner and Mr. Marotta, how relevant are they in this suit? The Department was not involved in the contract and while the intentions of the parties are well and good, they are essentially seeking to saddle the Department with a bill.
Though it is terribly unfair to Mr. Marotta, consider this: A guy goes to a party. He spends 15 minutes with a girl before they go to the bathroom together, do some blow, and have sex against the bathroom sink. (She said she’s on the pill; they didn’t use a condom.). They exchange names and numbers but never speak to each other again.
Is Mr. Marotta being forced to pay child support substantially less fair than the guy who made a baby at the party being told he’s a father – and has financial obligations to the child?