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September 6, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

I’ve written about this case before, but events have made me, if not change my mind, add to my thoughts on the subject (WAVY, 9/2/15).

It’s the case of a Kansas man named William Marotta.Back in 2009, he read a Craigslist ad placed by two lesbian women, Angela Bauer and Jennifer Schreiner, who wanted a child of their own.They were seeking a sperm donor and Marotta offered his.The three drew up a contract and all signed it saying he would have neither parental rights nor obligations.In due course, Schreiner conceived a child and gave birth to a daughter.Marotta kept his side of the bargain they’d struck; he sought no involvement with either the women or the child.All seemed exactly as the three had intended.Until...

The couple split up and Bauer contracted a serious illness.That meant Schreiner, who maintained custody of their daughter, suddenly couldn’t count on Bauer’s income.So she requested and received benefits under Temporary Assistance to Needy Families (TANF).That in turn meant the state demanded repayment from — you guessed it — the father.

Now, previously I’ve said that I have little sympathy for Marotta, and that’s still somewhat true.The simple fact is that no parent can simply sign a contract and absolve themselves of their legal responsibilities to a child.No law permits that, with one exception — sperm donor laws.In Kansas, as in other states, if artificial insemination is conducted through a licensed clinic and the proper forms are signed, a sperm donor can in fact father a child toward whom he has neither parental rights nor obligations.

But neither Marotta nor the two women seem to have looked into the legal aspects of what they were doing.They apparently labored under the utterly false assumption that a private agreement among themselves would be sufficient to absolve him of his legal responsibilities.As any lawyer could have told them, it’s not.

So, on one hand, Marotta didn’t abide by existing law and now he’s paying the price.The state wants its money and, under the law, it’s fully entitled to it.Marotta’s been resisting paying, but he doesn’t have a tenable legal position.

[Governor] Brownback’s administration said they can’t comment on case specifics, but did say, “If an individual wants to have the protections of a sperm donor, he needs to follow the law. In addition, parental rights cannot be signed away without following adoption laws,” Theresa Freed, DCF spokesperson said.

To his credit, Marotta’s standing on principle.He’s got the money to pay what he owes and in fact has paid his lawyers far more than the amount the state is demanding.He truly believes he’s right and isn’t giving up.His legal battle rages on.

And it’s here that I start to have second thoughts.Yes, the state is entirely within its rights under existing law to get its money from Marotta.But there’s more to it than that.

“Angie at one point called the department of child services and said, ‘You shouldn’t be asking this guy for child support. I’m the other parent,’” Marotta said. “They literally, truly told her, this is none of your business, go away.”

At that point, Marotta knew something was fishy. Why would the state want to take someone to court, instead of someone who is willing to pay, he pondered.

Interesting.Bauer told the state that she’s the “non-custodial parent,” so she should be the one to pay.She went to bat for Marotta because that’s at least the spirit of their agreement.And indeed, why wouldn’t the state accept the money offered it?Why spend precious tax dollars litigating against Marotta just to get money that Bauer’s ready willing and able to pay?(For that matter, why couldn’t Bauer simply give the money to Marotta who could then pay the state and be done with it?)

I suspect the answers to both those questions have to do with establishing a legal precedent.The state doesn’t want to admit that Marotta doesn’t owe the money and Marotta doesn’t want to admit that he does.It’s possible that his making payment or the state’s accepting it from Bauer would constitute some sort of estoppel or judicial admission that could come back to haunt them later.

But apart from those practical considerations, the issue really comes down to the rights and obligations of biology.Whatever Marotta, Bauer and Schreiner may have intended, the fact is that their contract is of no legal value.He’s obviously not going to, but Marotta could at any time demand visitation rights and there’s little the other two could do to prevent his getting a court order.

That’s because, like it or not, he’s biologically related to the child.As such, he has rights and responsibilities.If he chooses not to exercise his rights, so be it.But whatever he does, under our system of family law, parental rights and responsibilities usually flow from biology.Yes, adoptive parents have rights and duties, but the rule is that it’s biology that makes a parent.

Should it be that way?Should we in some cases decouple biology from parental rights and duties?I’ve argued before that men should have the right to “opt out” of fatherhood in the same way a woman opts out of motherhood when she has an abortion.Now, I think that right should be exercised before the child comes into the world, but still, that right could potentially decouple parental rights and obligations from the man’s biology.

We do the same in other ways.For example, Baby Moses laws that allow a parent to hand over an infant shortly after birth to, say a fire station or a hospital, have the practical effect of removing parental rights and obligations from the biological parents.Technically, Baby Moses laws have no effect on parental rights and duties, but only absolve parents of a charge of child injury or neglect.But when a parent hands over a child and walks away, in effect, that parent puts an end to any legal connection to the child.

And of course adoption laws do the same thing.There, parents sign away their rights and duties voluntarily (usually).

And finally, parental rights can be terminated for unfitness and, with that termination comes the termination of any responsibilities for the child.

But generally speaking, I think that splitting rights and obligations from biology is a dangerous road to travel, particularly for fathers.For states to rule that parenthood is a matter, not of biology but of, say, psychology, is perilous for fathers.A person’s becoming a parent solely by virtue of his/her having formed an ongoing relationship with a child is an open invitation to kidnapping, much as was done in the Rob Manzanares case.It would be far too easy for a mother to deprive a father of his child and his parental rights, simply by disappearing for the required period of time and forming a relationship with another adult of either sex.

But I think I can see an approach to the Marotta situation that would be sensible and still not impinge on the biological connection between parents and children that make up the core of parental rights.The fact is that, if Marotta isn’t forced to pay, the state would still get its money.Bauer has agreed to do that.So why not treat their situation like an adoption?

In an adoption, we allow parents to give up their obligations for one good reason — there’s another couple to shoulder them, i.e. the adoptive couple.So why couldn’t the State of Kansas simply treat Bauer as an adoptive parent since, in a very real sense, that’s exactly what she is?She has no genetic connection to the child, but she’s her parent all the same.

It’s probably too late, but why couldn’t Marotta go to court for the purpose of placing “his child” for adoption, with Bauer as the adoptive parent?That would meet all the legal niceties and the State of Kansas could feel better about accepting money from a non-biological parent.

It’s just a thought.

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