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September 28, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

It seems that every time I write about the William Marotta case out of Kansas, I backtrack further. Marotta is the man who, out of the goodness of his heart, answered the call of two lesbian women who needed a sperm donor in order to have a child. From the start, all parties understood that Marotta would contribute his sperm to the enterprise and have nothing more to do with either the two women or the child.

And that is exactly what happened. A child was conceived and brought into the world. The two women cared for it and never asked Marotta for a thing, not money, not help with caring for the child. And Marotta kept his end of the bargain too, never asking to play a role in the child’s life. The three had a deal and everyone stuck to it. Good for them.

Ah, but the best-laid plans… The two women eventually split up and one of them had serious health issues that meant she couldn’t work. So she applied for and received benefits under the Temporary Assistance to Needy Families. And when that happens, the state goes looking for a father to repay the money provided the mother.

To the State of Kansas, that meant Marotta whose DNA makes up half of the child’s. But Marotta resisted, citing the fact that he and the women never intended for him to bear such a responsibility. Not only that, but the other woman volunteered to pay the money to the state under the theory that she and not Marotta was the non-custodial parent. But Kansas wasn’t interested in her money, only his.

Now, from the outset, I said that Marotta was stuck. Side agreements about who will or won’t pay to support a child are simply not enforceable anywhere in the United States. But then I read about the woman’s offer to pay the money owed to the state and I backtracked. After all, money is money, so why shouldn’t she pay? That would reimburse the state and uphold the three people’s agreement at the same time.

But the state isn’t interested. Its attorneys would rather spend countless hours of valuable time in court trying to get the money from Marotta than simply accept the money from the non-custodial parent. For his part, Marotta is acting strictly on principle. He has the money to repay the state and has in fact spent far more on his attorney’s fees than what the state is demanding of him.

Now, I have to backtrack even further. Marotta’s lawyer, Charles Baylor, has written an open letter to all those who are interested in Marotta’s case and, contrary to what I originally believed, it looks like Marotta may have a chance of prevailing. Here’s the statute on which the whole case hangs.

"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).

As the judge in the case sees it (and the state agrees), absent a written agreement, any time artificial insemination is performed by a licensed physician, the sperm donor can have neither parental rights nor responsibilities toward the resulting child. By contrast, if a licensed physician is not used, as in the Marotta case, the donor is always the father. As Baylor says, “everything hinges on whether they go through a licensed physician.” Such was the ruling of the court.

But there’s more to the matter than just that statute. There’s another statute that seems to suggest that the State of Kansas may view the matter differently. Plus, there’s dicta in a Kansas Supreme Court that pretty much proves it.

"Any child or children heretofore or hereafter born as the result of heterologous artificial insemination shall be considered at law in all respects the same as a naturally conceived child of the husband and wife so requesting and consenting to the use of such technique." K.S.A.22-2302.

Clearly, not all Kansas artificial insemination statutes deem a doctor’s involvement important or even relevant.

Of course the second statute Baylor quotes has to do solely with husbands and wives using artificial insemination to conceive. Given that the couple is married, there’s a presumption that the husband is the father, so the state is differentiating between married and unmarried couples. That may give rise to a constitutional challenge, but I doubt one would prevail. States do many things to promote marriage that pass constitutional muster including differentiating between married and unmarried fathers.

But wait; there’s more.

Here is the Kansas Supreme Court in a case where the sperm donor, unlike Mr. Marotta, actually wanted to be the father, "the male's ability to insist on father status effectively disappears once he donates sperm." In re K.M.H., 285 Kan. 53, 73 (2007). 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 purpose of having a physician involved in the insemination process is largely to verify and ensure that the child was conceived by artificial insemination in order to avoid fraudulent claims. In Mr. Marotta's case, it is agreed to by all parties that the child was conceived by artificial insemination.

Good point. K.S.A. 23-2208(f) was last amended in 1994, i.e. 13 years before the Kansas Supreme Court’s ruling in In re K.M.H. So when the court said that "the male's ability to insist on father status effectively disappears once he donates sperm," it was well aware of the statute. And, just as in Marotta’s case, the man in In re K.M.H. wasn’t married to the woman and there was no written agreement between them regarding his role following the birth.

So it would seem that Marotta’s case would be hard to distinguish from In re K.M.H. But of course where child support is concerned, we’ve long known that courts are often happy for the ends to justify the means. We’ll see.

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