Interesting Sperm Donation Legal Issue in Kansas

A very interesting legal situation has come across the news wires in the last couple of months. In 2009, a Kansas man, William Marotta, answered Craigslist ad posted by a lesbian couple looking for a sperm donor in order to conceive. Although payment for the sperm was offered ($50), Mr. Marotta declined compensation and handed over his sperm specimen to the couple for free. His sperm was then used by the couple for an in-home insemination and one of the women conceived a daughter. Although all three parties signed an agreement stating that Mr. Marotta would have no parental rights or responsibilities, the state of Kansas is claiming that he is the legal father.

The mother of the child received public funds (about $6000.00) for the birth of the child and for welfare assistance. According to Kansas law, the state is obligated to identify fathers of children receiving public assistance and to try to have these fathers fulfill legal obligations in those cases. Because this was an in-home insemination and not performed by a physician or other sanctioned health-care provider, the state does not recognize Mr. Marotta as a sperm donor. The state is considering Mr. Marotta to be the legal father of this child. Beyond covering public assistance costs thus far incurred, they are charging him with providing child support payments to the couple/family despite the fact that their written agreement stated he would never have to do so. The state claims they do not recognize this contract.

The state of Kansas is arguing that if the insemination had been done by a physician, this would be considered donor insemination. A similar Family Code statute exists in California. If a woman, married or single, lesbian or not, is inseminated by a physician with sperm presented as a sperm donation, that person donating the sperm is to be considered a sperm donor only, with no rights or responsibilities. In cases that have gone to court prior to now, most have been “sperm donors” known to the recipient and some have had contact with the children and even been identified as a Dad. A falling out then occurs and the recipient tries to break the ties with the donor, who has then sued for parental rights. Again, if performed by a licensed physician, the insemination is considered a donation and generally, the donors have lost their appeals. This case in Kansas is quite the opposite, as the donor does not want to be recognized as a father to this child.

This case is still currently being decided in the Kansas court.

- Carolyn Givens, M.D.

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