Kan. Case Highlights Legal Issues for Sperm Donors

Experts believe a Kansas sperm donor being sued by the state for child support put himself in a precarious legal position by getting involved in a lesbian couple's do-it-yourself artificial insemination.

Kansas law states that a sperm donor is not the father of a child if a doctor handles the artificial insemination. But the law does not specifically address the donor's rights and obligations when no doctor was involved.

That was the case in 2009, when William Marotta answered an online ad for a sperm donation for Angela Bauer and her then-partner, Jennifer Schreiner. The three signed an agreement they believed severed Marotta's parental rights, and Schreiner became pregnant.

But because they didn't go through a doctor, the state argues, Marotta is the legal father and should be responsible for about $6,000 in public assistance Schreiner received to help care for the child. The state also wants him to pay child support, though neither woman is asking for money.

Marotta's attorney said Thursday that the law is outdated. But legal experts agreed that Marotta and the women put themselves in the predicament.

"I don't fault the state for this," said Corey Whelan, who runs workshops for lesbian couples interested in having children through the New York-based American Fertility Association. "I don't think this is a homophobic issue. I think this is a financially driven issue."

Whelan said her group has a long-standing practice of advising single women who want a child to work with doctors and attorneys. She said avoiding professionals is "a buyer-beware proposition."

But money can be a factor. Artificial insemination generally isn't covered by health insurance and usually costs between $2,000 and $3,000, said Steve Snyder, a Minnesota-based attorney and chairman of the American Bar Association's group on assisted reproduction technology.

"It is happening a lot," Snyder said. "Go on amazon.com, home insemination kit, $29.95. A lot of LGBT couples use them. I have a lot of cases involving those types of kits or people who intend to use them."

That sets up a tricky legal situation, said Dr. Ajay Nangia, the former ethics chairman of the American Society of Andrology, a national medical group for male reproductive health.

"The problem is the guy exposed himself to a situation that made him potentially liable because he had no legal protection," said Nangia, an associate professor of urology at the University of Kansas Hospital.

Still, Ben Swinnen, one of Marotta's attorneys, said his 46-year-old client cannot be declared the father of Schreiner's now 3-year-old daughter because of the written agreement with the two women. He pointed to laws in nine states that say a sperm or egg donor is not the parent of a child conceived through artificial reproduction.

"The state of Kansas is lagging behind in following the trend," he said. "It is a freeze, in my opinion, on artificial insemination and alternative family settings."

He also believes state officials' pursuit of Marotta's case in Kansas, where voters approved a constitutional ban on same-sex marriage in 2005, is designed to reinforce the definition of a family as a married man and woman, and their children. He said the state is trying to send a message that, "anything else is no good."

But the Kansas Department for Children and Families, which started pursuing Marotta in October, argued in a court filing Wednesday that at least 10 other states require a doctor's involvement in artificial insemination for a sperm donor to be protected from having to pay child support.

"It's a commonsense law," said Washington state-based attorney Mark Demaray, a past president of an organization for attorneys who handle assisted reproduction legal issues. "It's very common for them to have to go through a doctor's office and get a sworn statement from the doctor that he or she performed this procedure."

Marotta is trying to get the case dismissed. A hearing is scheduled in April in Shawnee County District Court.

Bauer and Schreiner have told The Topeka Capital-Journal that they're backing Marotta in his fight. The Associated Press left a message Thursday at a phone number listed for Schreiner, and she didn't respond to a Facebook message. Listings for Bauer were incorrect or out of service.

A spokeswoman with the Department for Children and Families said earlier this week that the agency routinely tries to track down the biological father when a single mother seeks public benefits for a child, as Schreiner did in January 2012, and require him to pay child support.

The effort, the state says, is to potentially lessen the burden on taxpayers. Officials in Gov. Sam Brownback's administration declined further comment Thursday.

It wasn't immediately clear Thursday whether other states have pursued sperm donors for child support. However, lawsuits have been filed in cases where mothers seek support from donors.

Last year, a state appeals court in California sided with a Texas man who was sued for child support. In New Mexico, a state appeals court in 2008 ruled against a sperm donor who saw the children regularly and had agreed to pay some child support but didn't want the amount increased.

In 2002, the National Conference of Commissioners on Uniform State Laws suggested that states have laws specifying that "a donor is not a parent of a child conceived by means of assisted reproduction" and that no donor could be sued to support the resulting child.

Kansas' law, enacted in 1994, was based on an earlier model law from the same Chicago-based group, but legislators haven't revised it. The group's website says the newer language has been enacted in nine states, including Alabama, Oklahoma and Texas.

"It was updated as science progressed," said Eric Fish, legal counsel for the group. "It continues to progress more quickly than the law."