A DISCUSSION OF LAW AND JOURNALISM

Tag: United States v. Windsor

Who’s Your Daddy?

Sperm

By Joseph James Gianetti

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.

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