23 Jun 2014 Kansas High Court Puts Child’s Best Interests Ahead of State in Sperm Donor Parentage Case

New developments in the case of the Kansas sperm donor who, despite the fact he had no relationship or contact with the child conceived as a result of his genetic contribution, was ruled by a Kansas court to be the child’s father.

As we wrote several months ago, William Marotta of Topeka responded to a Craig’s List ad placed by a lesbian couple, Angela Bauer and Jennifer Schreiner, soliciting a sperm donor. The parties entered into a written agreement that defined Marotta’s role as sperm donor with no parental responsibility to the child. Marotta says he did not receive payment for his donated sperm.

Schreiner conceived and gave birth to a daughter. In 2010, after 10 years together, Bauer and Schreiner separated. When Schreiner became ill and unable to work, she attempted to obtain health insurance for her daughter through the state’s Medicaid system

But the Kansas Parentage Act requires that sperm donation and artificial insemination must be made under the care of a licensed physician; because Marotta delivered the sperm to the couple, who performed the insemination themselves, the state of Kansas does not consider the donor agreement to be legally binding. When Schreiner applied for benefits for her daughter, the Kansas Department for Children and Families insisted that she provide the name of the child’s biological father. Ultimately, Shawnee County District Court Judge Mary Mattivi ruled that Marotta is the legal father of Bauer’s and Schreiner’s daughter and financially liable for her support. The court ordered Marotta to submit to genetic testing to establish his genetic relationship to the child; the non-genetic mother, Bauer, who has continued to co-parent the child with Schreiner, was denied legal standing to be a party in the case. Keep in mind that “dad” Marotta has had no contact with the child.

Fortunately for all involved, the Kansas Supreme Court recently came down on the child’s side. Attorneys for Marotta and the two moms filed for a “writ of mandamus,” asking the Court to stay the court order for genetic testing. Citing an earlier case, In re Marriage of Ross, Kansas Supreme Court Chief Justice Lawton R. Nuss writes:

“Prior to ordering a blood test to determine whether the presumed parent is the biological parent, the district court must consider the best interest of the child, including physical, mental and emotional needs.”… Read in gender-neutral language, the Ross court held that the shifting of parental roles from a presumed parent to a biological parent could be detrimental to the emotional and physical well-being of any child….

And reading Ross in gender-neutral terms, we find that when genetic testing has the potential to disrupt the core family by possibly displacing a presumptive parent, a Ross hearing must be held… Once testing is complete, there is no remedy on appeal that can unring that bell….

The ruling ends with an order for Judge Mattivi to conduct a hearing to determine whether genetic testing is in the best interests of Bauer’s and Schreiner’s child.

Of course, we have no way of knowing which way that best interest hearing will go. But in the interim, Kansas’s high court has said that the best interests of the child should be the primary consideration—and that is a very promising ruling.