Who’s Your Daddy?

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.

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?



7 Responses

  1. Kelly C says:

    In response: I think both are unfair, actually, but poor Marotta’s situation is even more unfair. Good job making that comparison, though. I hadn’t thought of that.

  2. In that society is ultimately taxed and tasked with the care and feeding of each new life, society (especially its taxpayers) has standing to draw the line: Don’t have children you can’t afford. Further, don’t donate to and thus enable others who can’t afford to have children.

    And if donors and donees do create a new, but unaffordable new life, then they must be held jointly and severally liable for that expense. That means that if one can’t pay, the other shall.

    I therefore disagree with “off-the-hook” statutes that, for example, let a donor off the hook from the cost of creating and raising a new life just because a doctor was involved.

    This would not destroy sperm donation. If women want donations and men want to donate, then they must both buy a “childcare” (0-18 years) insurance policy (which should be legislatively mandated) so that they may shift the economic risk to themselves, as enabled by a risk-sharing pool (insurance), and not to society (we taxpayers).

    Absent that, the State is right and just in hunting down and holding accountable all participants who created a new life, regardless of any private agreements between them.

  3. Inez says:

    I don’t agree with the idea of an insurance policy to create a child. But it’s true that this couple would not have been able to adopt — they clearly couldn’t care for a child, and it was irresponsible for them to make one.

  4. anEv says:

    Well written article.

  5. This is one of those situations that make you really scratch your head and wonder where the responsibility and accountability is in society today. Marotta was clearly making a donation of sperm for the measly $50, making it possible for the woman couple to have the child they desperately wanted. Whether they filled out the correct forms or not, this was a decision made by adults, and the transaction should stand. We all know though that the legalities of this exchange are sure to be more complicated than that!

  6. Joe P G says:

    Difficult subject, but you addressed it professionally and with compassion.

  7. Lex Apostata says:

    First, it seems to me that the indemnification clause need not be struck down; it’s just that the father is going to have a hard time collecting from judgment-proof defendants. In theory, the mom(s) must repay him anything he pays out in child support, but in practice, since they have no money, all he gets is an IOU. This is a risk with ANY indemnificaton clause — your indemnor may be uninsured and bankrupt when the time comes to pay out.

    Second, what if there was a combination of this scenario and the Irons/Phillips scenario referred to in the story, where a doctor (ahem) “collects” someone’s sperm voluntarily, but then uses it to impregnate herself? If one of the two “moms” in this story had been a physician, would the statute have applied? What if the trio had gotten a licensed physician to take the sample from the donor and simply hand it to one of the women — would that have sufficed to immunize the donor from child support?

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