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December 1, 2016 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

I’m surprised, but William Marotta won. The State of Kansas may well appeal the trial court’s ruling, but, for now at least, Marotta won’t have to pay child support for his biological child. Here’s my last post on the case.

In a nutshell, Marotta answered an ad placed on Craigslist by two women, … and … who were seeking a sperm donor in order to have a child. The three entered into a written agreement to the effect that he would pursue no legal rights to the child and the women would not pursue him for child support. They paid Marotta for his donation, a child was conceived and was brought into the world. All three adults scrupulously adhered to the bargain they’d struck.

But the State of Kansas wasn’t party to that bargain and when one of the women received welfare benefits from the state, authorities started looking for the child’s father for reimbursement. It’s the type of thing that states do under Title IV-D countless times a day every day.

But Marotta resisted paying. That’s not because he doesn’t have the money; he does. Indeed, he’s spent far more on attorneys’ fees fighting for the principle that a man who’s nothing more than a biological father shouldn’t have to support a child who doesn’t know him and who has two perfectly fit parents caring for her.

Remarkably, as the Associated Press reports, Marotta’s argument carried the day.

A Topeka man who answered a Craigslist ad to donate sperm so two women could have a baby together is not legally the child's father and isn't required to provide financial support, a Kansas judge has ruled…

[District Court Judge Mary] Mattivi last year required Marotta to submit a DNA sample to confirm that he was the girl's biological father and declared he was not "a mere donor of sperm." But the judge's Nov. 22 ruling concluded that birth mother's former partner should be considered the child's second parent rather than Marotta, in part because he has had minimal contact with the girl.

The department filed a petition in 2012 to have Marotta declared the child's legal father and require him to pay child support after the women, birth mother Jennifer Schreiner and Angela Bauer, separated and Schreiner received assistance from the state. The department initially sought to reclaim about almost $6,100 in expenses associated with the child's birth.

Now, the case turned on certain minutiae of Kansas law regarding whether the services of a physician were utilized as well as previous statute and case law.

Courtney Joslin, a University of California, Davis law professor, said a commission on uniform state laws recommended in 2000 and 2002 that states eliminate a requirement that physicians be involved in assisted reproduction to protect sperm donors. Eleven states adopted its recommendations, and California independently repealed the requirement as of this year, she said.

Nine states and the District of Columbia have laws that treat an unmarried partner as a legal parent when there is assisted reproduction, Joslin said.

And apparently Mattivi was swayed by the simple facts of the case – that Marotta had played no part in the child’s upbringing, while Bauer and Schreiner had been the girl’s exclusive parents.

Mattivi's latest ruling noted that Schreiner and Bauer are parenting the girl together and that Kansas courts have long held that the child's best interest is the key issue. The judge said Bauer's presumption of parenthood is "superior" to Marotta's.

We’ll see what happens if the State appeals. My guess is that this case isn’t over just yet.

Meanwhile, I’d caution fathers’ rights advocates from celebrating too much. Mattivi’s ruling has no precedential value, coming as it does from a trial court. But her reasoning is clearly a double-edged sword. At least part of the basis of her ruling is that the non-biological parent, having been the hands-on caregiver all the child’s life, has a superior parental claim to the biological parent who’s not taken part in her life. Therefore, the child’s best interests lie with her continuing to be cared for by the two women who’ve played the role of parent.

That makes sense in a case like Marotta’s in which the biological dad wants neither parental rights nor obligations. But what if he wanted both? What if another father passionately wanted a relationship with his child, but it was denied by the mother in favor of another adult? Under Mattivi’s reasoning, couldn’t he too be shut out of the child’s life?

Indeed, something very similar happened in Kansas in the case of In re K.M.H. There the state Supreme Court ruled that "the male's ability to insist on father status effectively disappears once he donates sperm."

Will this case and K.M.H. be used to justify the deprivation of parental rights to fathers who are victims of paternity fraud? True, the facts are different. Sexual intercourse is not the same as sperm donation in terms of the intention of the man. Or, depending on his behavior, not so different.

Consider this scenario: John and Jane meet at a party, go back to his place and have sex. She never tells him that he fathered a child. She takes up with another man who plays the role of father to the child. Somehow John learns about the child and seeks to assert his parental rights. Result? Under Marotta’s case and K.M.H. I can see his claim being denied. After all, he didn’t do everything in his power to find out whether Jane had conceived a child and brought it to term, so how is he different from a sperm donor? And needless to say, the best interests of the child are served by maintaining the parental status quo, right? Case closed.

I fully understand that the actual cases are different from my hypothetical one. But case law has a way of slopping out of the carefully crafted containers meant to limit its scope, and applying the reasoning in these two cases to, say, paternity fraud cases is by no means too much of a stretch.

 

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