Rich Vaughn Blog: Kansas Sperm Donor

Kansas Sperm Donor’s Liability Hinges on Legal Technicality

The case of William Marotta, perhaps better known as the “Kansas sperm donor” whom the state is pursuing for child support as the biological father, via sperm donation, of a daughter born to a lesbian couple, is still wending its way through the courts.

Here is the background: Marotta, as we explained in our Jan. 9, 2013, article, “Kansas Sperm Donor Trapped by DIY Insemination Loophole,” responded to a 2009 Craig’s List ad soliciting a sperm donor to enable a lesbian couple to have a child. Marotta’s sole role was to deliver the sperm, for which he was not paid, to the couple at their home. All three parties signed a sperm donor agreement stating that Marotta would have no parental rights or responsibilities for any resulting child, and Marotta went on his merry way. The women then performed artificial insemination using Marotta’s sperm, and nine months later their daughter was born.

In 2010, after eight years as a couple, the women separated. The birth mother and custodial parent of the child conceived using Marotta’s sperm became ill and unable to work. When she enrolled her daughter in the state’s Medicaid healthcare insurance program, the state of Kansas insisted that she disclose the name of the daughter’s biological father: Marotta. The state went after Marotta for back child support—even though neither he nor the women had intended that he be the child’s father, and even though he had previously had no contact with the child. In the state’s view, Marotta, regardless of intent, was the child’s father and thus responsible for the financial support of the child.

The judge in the case based her opinion on a state statute that says:

“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.” K.S.A. 23-2208(f).

In other words, had the lesbian couple undergone in vitro fertilization via a licensed physician, Marotta would not be treated by the state as the child’s father. In fact, the lesbian couple and Marotta would have had to sign an agreement stating Marotta was to be the child’s father, had that been their intention. But since IVF was performed by the women in the privacy of their own home, with no licensed physician in attendance, the judge considers Marotta to be the dad—regardless of the intention of any of the parties.

Following the original trial court ruling, Marotta’s attorneys filed for a writ of mandamus asking the Supreme Court of Kansas to tell the lower court to stop the proceedings based on the issues laid out in the writ. In its writ, the state Supreme Court told the appellate court it needed to also consider the “best interest of the child” rather than solely considering the automatic presumptions of paternity (in a vacuum). This action by the Supreme Court basically put a hold on an appellate court ruling… i.e., no new law in Kansas.

Since the state’s initiation of its case against Marotta, the sperm donor has changed attorneys; the new attorney has filed unsuccessfully to have the Kansas judge removed from case; and Marotta has undergone DNA testing which has established him, with 99.9 percent certainty, as the child’s biological father—although Marotta does not deny he was the sperm donor.

In an open letter Marotta’s new attorney, Charles C. Baylor of Topeka, questions the original judge’s interpretation of the Kansas statute and asserts that legal tradition and earlier Kansas Supreme Court rulings supersede her findings. Citing a 2007 sperm donor case, K.M.H. 285 Kan. 53, 73, which states “the male’s ability to insist on father status effectively disappears once he donates sperm,” Baylor writes:

“Does that sound like a court which believes that the question of whether a sperm donor is the legal father or not turns on whether a licensed physician is used? No, that sounds like a court which believes what has almost always been believed about sperm donor paternity, namely, that the question of whether the biological father is the legal father is determined largely according to the means by which the child was conceived: if it was conceived by sexual intercourse then the biological father is the legal father; if it was conceived by artificial insemination then he is not the legal father.”

The judge in the Marotta case, Baylor continues, interpreted the law to say the question of fatherhood of a sperm donor hinges solely on biological paternity and on whether or not the insemination was performed by a licensed physician, rather than on the expectations of the parties involved—the expectations that the statute supposedly was designed to protect. In Baylor’s view, the language of the statute included the presence of a licensed physician as a way of preventing the recipients of a sperm donation from later fraudulently making claims of parental support on a sperm donor. “In Mr. Marotta’s case,” Baylor writes, “it is agreed to by all parties that the child was conceived by artificial insemination.”

In this case it seems the state has a bias to identify a parent who will be financially responsible for the child—regardless of whether any of the parties ever intended that parent to incur that responsibility. Its identification of Marotta as that responsible party hinges entirely on a technicality—one that lawmakers who drafted the original legislation probably never considered or intended.

At the moment, the parties are engaged in briefing, which is due by the end of November. The issue being briefed is essentially what do you do when you have competing factors to weigh in the balance? In other words, there are some automatic presumptions of paternity that would make the sperm donor a father (genetic link, and the fact they did not do the sperm donation in a clinic)... but how do those automatic presumptions weigh against the best interests of the child— and which presumptions are weightier?

I have to believe best interests will win out....but we'll see!

To read more about this case, see our earlier articles: “Court Rules Kansas Sperm Donor is Father” and “Kansas High Court Puts Child’s Best Interests Ahead of State.”

 

Rich Vaughn
Richard Vaughn
rich@iflg.net

Attorney Rich Vaughn is founder and principal of International Fertility Law Group, one of the world’s largest and best-known law firms focused exclusively on assisted reproductive technology, or ART, including in vitro fertilization (IVF), surrogacy, sperm donation or egg donation. Rich is co-author of the book “Developing A Successful Assisted Reproduction Technology Law Practice,” American Bar Association Publishing, 2017.

Peiya Wang
PEIYA WANG(王培娅)
Paralegal (律师助理)

Peiya Wang joined IFLG as a paralegal in 2015, where she manages surrogacy, egg donation and parental establishment cases and provides translation services for many of IFLG’s international clients. Peiya received her bachelor’s degree from Beijing Technologies and Business University, where she majored in Marketing. She moved to the United States in 2012 to attend Northeast University in Boston, Massachusetts, receiving a Master of Science degree in Global Studies and International Affairs in 2014. Peiya moved to Los Angeles in 2015 and received her paralegal certification from UCLA Extension. When away from the office, Peiya is a dragon boat paddler and a ballroom dancer, where she favors Rumbas and Cha-chas. She is fluent in Mandarin and English.

Luis Sosa
LUIS SOSA
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Luis R. Sosa joined IFLG as a paralegal in 2016, where he enjoys pursuing his passion for family and reproductive law. While working toward his bachelor’s degree at Florida International University, Luis worked as a paralegal and legal assistant for family law litigation firms in Miami and Washington, D.C. As a paralegal and case manager for IFLG, Luis, who is bilingual in English and Spanish, manages surrogacy, egg donation and other reproductive law cases. In addition to spending time with husband Randy and dog Marty, Luis enjoys being outdoors and appreciating the arts.

Toni Hughes
TONI HUGES
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After receiving her B.S. in Business Management, Toni joined IFLG to pursue her dream of working in the legal field. As a Paralegal with over 10 years of experience in the assisted reproduction technology field, Toni is our Managing Paralegal, responsible for training and managing our paralegal staff. From drafting legal documents to assisting our clients with post-birth matters, Toni embraces the challenge of learning something new in this field each day. Besides spending time with her son, Jordan, Toni enjoys exploring new things, cooking, spending time with family and friends, and serving as a Youth Advisor for “Next Generation.”

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Miesha Cowart joined IFLG as a financial specialist in 2014 following a successful career in development and business finance. Miesha previously worked for 10 years in the construction industry as a controller and for 13 years as Development Coordinator for the non-profit U.S. Fund for UNICEF. In her free time, Miesha works with “Next Generation” at her church. “They are my heartbeats!” she says of the youth in her community.

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RICHARD B. VAUGHN
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Attorney Rich Vaughn combined his personal passion as a father of twin boys born via assisted reproductive technology (ART) with more than 20 years of experience in business and technology law to build International Fertility Law Group. Today IFLG is one of the most successful and best-known law firms in the world focused exclusively on fertility law, helping thousands of intended parents through empathetic listening, compassionate guidance, and unmatched legal expertise. As an advocate for reproductive freedom, Rich also contributes his knowledge and time to improving the understanding and practice of ART law, most recently as a founder of and speaker at the first Cambridge University International Surrogacy Symposium held in June 2019, as immediate past chair of the American Bar Association ART Committee, and as a popular presenter to law schools, faculty and advocacy organizations all over the world.

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Elizabeth received her Bachelors of Science degree in Criminal Justice from California State University of Los Angeles. Shortly after graduating, she continued her education at the University of California, Los Angeles where she obtained her Paralegal certificate. Elizabeth is fluent in Spanish and has been in the legal field since 2009. She is excited to be a part of the IFLG Team helping families realize their dreams.

Sunny Chien
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Sunny joined IFLG as a paralegal in 2017, where she manages surrogacy, egg donation and parental establishment cases for many of IFLG’s international clients. She holds a Bachelor of Arts degree in Philosophy from California State University of Los Angeles, where she graduated cum laude. Sunny is bilingual in English and Mandarin and has extensive experience as a legal assistant and paralegal at Los Angeles-area law firms. She is excited to be part of the IFLG team. In her spare time, Sunny enjoys spending time with her family and their dog, going to the beach, cooking, and being outdoors.

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