A Kansas man who, responding to a Craigslist ad, donated his sperm to a same-sex couple for a daughter born in 2009 is not the child’s legal father, a judge found last week.
Shawnee County District Judge Mary Mattivi ruled William Marotta does not have to pay back the state for expenses associated with the child’s birth as well as future child support payments. The state Department of Children and Families was attempting to reclaim about $1,600 in public assistance it gave the birth mother, who separated from her female partner, plus ongoing child support.
The emergence of sperm donations and the high success rate of in vitro fertilization have opened up new options for same-sex couples who want to raise children biologically connected to them in addition to older, unmarried women. But the legal dispute in Kansas shows how some state laws haven’t kept up with advances and changing attitudes about reproduction.
The Department of Children and Families argued Mr. Marotta was the legal father because the couple he donated his sperm to never used a physician. A 1994 Kansas law states a man who provides donated sperm to a doctor for insemination is not the child’s parent, unless there is a written agreement to the contrary.
But since the birthmother, Jennifer Schreiner, and her former partner, Angela Bauer, didn’t use a doctor, the state maintained the law didn’t apply to them.
"If a sperm donor makes his contribution through a licensed physician and a child is conceived, the donor is held harmless under state statue. In cases where the parties do not go through a physician or a clinic, there remains the question of who actually is the father of a child or children," Angela de Rocha, a spokeswoman for the Kansas Department for Children and Families, said in a statement in 2013.
Ms. Schreiner and Ms. Bauer signed a contract with Marotta in which they agreed to pay him $50 for every semen donation. Marotta had also said the contract waived his parental rights and responsibilities.
The state was seeking the court to find Marotta as the child’s legal father so it could recoup the public assistance it gave Schreiner. Bauer, the former partner, is unable to work and is receiving Social Security disability benefits, according to the judge. Schreiner and Bauer previously said they supported Marotta’s efforts to fight the state request.
Charles Baylor, Marotta’s attorney, said the department’s position was “radical” and discriminated against same-sex couples.
“If the presumptive parent, in this case the non-biological mother [who separated from the birthmother], had been a man, they never would have gone after the sperm donor,” said Mr. Baylor.
Judge Mattivi found on Nov. 22 that Bauer, the birthmother’s former partner, should be considered the child’s second parent in part because Marotta had minimal contact with the girl.
The state agency has not said whether it plans to appeal.
The issue of whether a licensed physician should be involved in assisted reproduction isn’t confined to Kansas. A commission on uniform state laws recommended in 2000 and 2002 that states eliminate this requirement to protect sperm donors, Courtney Joslin, a University of California, Davis law professor told the Associated Press. Eleven states adopted the commission’s recommendation, and California independently repealed the requirement this year, she said. Meanwhile, nine states and the District of Columbia treat an unmarried partner as a legal parent when there is assisted reproduction, she said.
This debate has also extended to the rights of men who claim fatherhood for a child conceived in a lab. Actor Jason Patric of “Lost Boys” was finally named in 2015 the legal father of a son conceived through in vitro fertilization after a lengthy legal battle. Mr. Patric and the boy’s mother, Danielle Schreiber, had no written agreement as to the parental arrangement.
This report contains material from the Associated Press.