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Don’t Do This Home Alone in Kansas! Court Holds Sperm Donor Liable for Child Support

Posted on: January 23rd, 2014 by Art Leonard No Comments

A man who responded to a Craigslist ad placed by a lesbian couple in Kansas seeking a sperm donor to help them have a child is considered the legal father of the child, ruled a Kansas judge on January 22, because he provided his sperm directly to the couple in a sample cup rather than submitting it to them through a doctor. The court found unenforceable a document that the man and the couple had signed under which they agreed he would not have any parental status with the resulting child.

The ruling by Shawnee County District Judge Mary E. Mattivi responded to a lawsuit filed against the sperm donor by the Kansas Department for Children and Families (DCF), seeking the donor’s financial support for the child, whose birth mother had filed an application for welfare benefits from the state.

According to Judge Mattivi’s written opinion, which sought to preserve anonymity for the donor and the couple by using initials rather than names, A.B. and J.L.S., women living in a committed relationship, placed their advertisement on Craigslist in March 2009, and W.M. responded and met them in person on March 23, 2009. They presented him with a form contract that appeared to have been downloaded from the internet, which he took home to review. He did not consult a lawyer, and the women seem not to have consulted a lawyer either. On March 30, 2009, W.M., A.B. and J.L.S. signed the contract. On three consecutive nights in April, W.M. provided semen to the women in a specimen cup, and A.B. used the semen to inseminate J.L.S., who became pregnant and gave birth to M.L.B.S. in December 2009. The women and child lived together until at least early in December 2010, when the women separated.

Early in her pregnancy, J.L.S. applied for benefits from DCF without disclosing her relationship with A.B. or her pregnancy. In February 2011, after the women had split up, J.L.S. filed a new benefits application for food, cash and medical assistance for the child. The application form asked for the identity of the father, and she wrote “donor” in that space. She did not identify her former partner, A.B., as a co-parent, or indicate any financial support from A.B. for the child. DCF then requested a copy of the Sperm Donor Contract, but evidently J.L.S. had not retained the agreement, W.M. having taken the original. J.L.S. submitted another application in July 2012, this time writing “anonymous sperm donor” in the space for father, and again not mentioning A.B. or any other source of support.

In September 2012, DCF suspended support because of J.L.S.’s failure to supply the Sperm Donor Contract. It appears that J.L.S. then downloaded another copy of the form and filled it out, including signatures for herself, A.B. and W.M., and submitted it to DCF, which appropriately concluded that the sperm donor was known and decided to seek support for the child from him. In the ensuing litigation, DCF sought and obtained blood testing confirming that W.M. is the biological father of M.L.B.S. A.B. sought to intervene in the litigation to assert her parental rights as an “intended parent,” arguing that establishing W.M. as the parent would interfere with her parental rights and violate the Sperm Donor Contract.

The court decided to simplify matters by focusing first on the question of W.M.’s status — donor or parent? — and leaving questions about A.B.’s status until later. The January 22 opinion concludes that W.M. is a legal parent, and that Kansas’s version of the Uniform Parentage Act, which protects donors from legal liability, does not immunize W.M. because the parties failed to involve a physician in the insemination process.

The statute says, “The donor of semen provided to a licensed physician for use in artificial insemination of a married woman other than the donor’s wife is treated in law as if he were not the natural father of a child thereby conceived.” Since 1973, when this language was formulated by the Commissioners on Uniform State Laws and submitted to the states for adoption, the Commissioners have gone through several rounds of revisions and updating, taking account of the increasing phenomenon of donor insemination being used by unmarried women and same-sex couples, but “for reasons known only to the legislature,” wrote Judge Mattivi, “Kansas is one of the states that remains in line with the UPA of 1973,” have failed to adopt the more recent versions of the uniform law. “It is from here that this Court must apply the law.”

Judge Mattivi concluded that the statutory language is clear and unambiguous in providing that only insemination accomplished with the involvement of a physician will shield the sperm donor from having the status of a parent. Thus, the do-in-yourself-at-home insemination in this case did not qualify for such protective treatment. W.M. is the father.

Then the question arises whether the Sperm Donor Contract signed by W.M., A.B. and J.B.L. would extinguish his parental status, and the court ruled that it would not. “A parent may not terminate parental rights by contract,” she wrote, “even when the parties have consented. Termination of parental rights is controlled by statute, and in Kansas it may be accomplished only in one of the three following ways: (1) through relinquishment and adoption; (2) through adjudication as a child in need of care; or (3) through a finding of parental unfitness by the court.” After quoting the operative paragraph of the Sperm Donor Contract, the judge wrote, “The Kansas legislature does not authorize this manner of termination of parental rights. It is well established under Kansas law that a child is entitled to support from its parents, and that obligation may not be abandoned.” Since none of the three methods of terminating parental rights had been followed in this case, “W.M.’s status as birth father precludes termination.”

Having concluded that W.M. is the birth father, the court granted DCF’s motion for summary judgment on that point, finding him “the presumptive father of M.L.B.S.,” rejected W.M.’s cross-motion for summary judgment, and instructed DCF’s attorney to arrange with W.M.’s attorney to secure a date and time for a status conference with the judge’s administrative assistant. Unless W.M. is able to secure a stay pending an appeal, he will have to negotiate payment terms. The court’s opinion does not address A.B.’s contention that she is a co-parent of the child, as that issue was put off by the court for now. There is no indication in the court’s opinion that DFC was interested in pursuing A.B. for child support payments.

Press accounts identify W.M. as William Marotta. Marotta’s attorney, Benoit Swinnen, told the Topeka Capital Journal (January 23) that she would appeal the ruling if Marotta wanted to do so, but she had not yet been able to contact him about it. Press accounts identify the birth mother as Jennifer Schreiner and her former partner as Angela Bauer, and indicate that as of now the amount of money at stake is about $6,000 that has already been paid out for support of the child, with future support payments possible. There is no indication in press reports whether DCF intends to take any action against Schreiner for attempting to conceal Marotta’s identity by submitting the applications without identifying him as the father.

Nevada Supreme Court Answers Questions of First Impression in Lesbian Custody Dispute Involving Donor Insemination and Co-Parenting Agreement

Posted on: October 8th, 2013 by Art Leonard No Comments

The Nevada Supreme Court ruled unanimously on October 3 that a child can have two mothers and that a co-parenting agreement made by two women before their child was conceived through anonymous donor insemination with one woman providing the egg and the other being the gestational mother, can be enforceable as an agreement by parents who are presumed to have the best interest of their child at heart.   Reversing a trial court decision that treated one of the women as a mere surrogate mother with no legal rights, the court returned the case to the trial court for a new determination of parental rights.

Justice Nancy M. Saitta wrote the opinion in St. Mary v. Damon, settling several questions of first impression under Nevada law, and giving heavy weight to California decisions that interpret similarly-worded statutes.

Sha’Kayla St. Mary and Veronica Lynn Damon moved in together about a year after their relationship began, and decided to have a child together.  According to St. Mary, they decided to have Damon contribute the egg for in vitro fertilization with sperm through an anonymous donor, the resulting ovum to be implanted in St. Mary, in order that both of the women would have parental status, St. Mary as the birth mother and Damon as the genetic mother.   After the procedure was performed they both signed a co-parenting agreement, under which they agreed that if their relationship ended, they would “each work to ensure that the other maintained a close relationship with the child, sharing the duties of raising the child, and make a ‘good faith effort to jointly make all major decisions” affecting the child.

St. Mary gave birth to the child in June 2008, and was listed on the birth certificate as the child’s only parent, but the child was given a hyphenated last name to reflect both mothers.  About one year after the child’s birth, the women ended their relationship, St. Mary moved out of the home, and they disagreed about how to share their time with the child.  However, St. Mary cooperated with Damon by signing an affidavit declaring that Damon was the biological mother of the child, which Damon used to get a court order to have the child’s birth certificate amended to list her as a mother.  The court declared that Damon was “the biological and legal mother” of the child, and ordered that the birth certificate be amended to add Damon’s name as a mother.

Then St. Mary filed the lawsuit seeking to establish custody, visitation, and child support, but Damon responded that as the biological mother she was entitled to sole custody, attaching the 2009 court order.

The trial judge treated St. Mary as a mere surrogate.  Damon had filed a motion to limit the court’s evidentiary hearing to the issue of whether St. Mary would have visitation, arguing that Damon’s sole parental status had been established by the court’s order.  The trial judge agreed with Damon, excluding St. Mary’s custody claim from the hearing, and focused solely on the visitation issue.  At the conclusion of the hearing, the trial court found that St. Mary should have “third party visitation,” finding that she “has no biological or legal rights whatsoever under Nevada law.”  Further, the trial judge found the co-parenting agreement unenforceable, concluding that it fell outside the scope of enforceable surrogacy agreements, which under Nevada law could be made only by a married couple with a surrogate.

St. Mary appealed from the denial of her parental rights, and the Nevada Supreme Court unanimously reversed, finding that the trial judge was mistaken about Nevada law.

Following the lead of the California courts, the Nevada Supreme Court held that a child can have two legal mothers, and that a co-parenting agreement such as the one made in this case could be enforceable.  Most significantly, the court found that under Nevada statutes St. Mary could be deemed a parent to the child because she was its birth mother under circumstances where, as she claimed, the women had agreed that both were intended to be parents of the child.  The trial judge had misconstrued the effect of Damon’s prior legal action to establish her parental rights, said the court.  Although the prior court order had established her status as a legal mother of the child, it had not ordered that St. Mary’s name be removed from the amended birth certificate.

That is, finding that the child had two legal mothers was not inconsistent with the prior decision.

The facts are contested however.  Damon claims that St. Mary was intended to be a surrogate and not an intended parent, and that the “co-parenting agreement” was actually an invalid surrogacy contract that the women had signed because the clinic that performed the procedure required a written agreement.  When the case goes back to the trial court, there will have to be an evidentiary hearing to determine whether St. Mary or Damon is more credible, but Justice Saitta’s narration of the facts implicitly suggests that St. Mary’s account of what happened makes more sense.

Nevada is now a domestic partnership state, but that development post-dates the relevant facts in this case, as the child was conceived in 2007 and born in 2008, and Damon’s initial action seeking a declaration of her status took place in 2009, which is also when St. Mary filed her complaint in this case.  Had the women been registered Nevada domestic partners at the relevant time, the law would have recognized both as parents of the child.  But many lesbian couples have children without undertaking to register as partners or marry, so the court’s ruling remains important, and continues a trend in applying the up-to-date version of the Uniform Parentage Act as construed in California and followed in New Mexico to encompass the legal situation faced by non-traditional families.