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Inadvertent Fatherhood: Strict Liability for Sperm and the Consequences of (Un)planned Parenthood

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by Andrew Vorzimer, Esq. & Corlandos Scott, Esq.

The picture of the unintentional father has evolved from that of the hormonal teen who spent a fateful, bliss filled night in the back seat of his father’s car, perched above the cityscape, only to find himself in the throes of diaper changing nine months later.  Today, the picture is less sharp, and it often excludes the merriment of a back-seat romp.  William Marotta is all too familiar with the new picture of inadvertent fatherhood. 

The Kansas man donated sperm to a lesbian couple who conceived a child using his donation.  According to court documents, Marotta answered the couple’s Craigslist advertisement seeking a sperm donation.  After meeting the couple, he agreed to make a gratuitous donation, delivered to the couple three cupfuls of his sperm, and the women handled the artificial insemination themselves, using a syringe.  Although this may sound too primitive to believe, it is an unfortunately common occurrence for couples seeking the conception solution of artificial insemination.  In fact, one can purchase a “home insemination kit” from the Internet for a price comparable to a couple cups of coffee from the local designer coffee shop. 

Eventually, the recipient couple separated and the biological mother of the child became ill.  The mother then petitioned the Kansas Department of Children and Families (“DCF”), needing state support in order to provide for the child.  Unfortunately for Marotta and the mother, all individuals who apply for taxpayer-funded benefits through the DCF are asked to cooperate with child support enforcement efforts.  The DCF is tasked with the responsibility of establishing paternity and requiring the noncustodial parent to pay support.  Although the mother is not requesting child support from Marotta, the state will not use tax-payer funds to support a child who has a non-custodial parent who can provide support.  As such, the state is suing Marotta for both past support that the state provided the mother, as well as future child support. 

The parties attempted to avoid their current dilemma by signing an agreement where the couple promised to hold Marotta harmless financially.  Nonetheless, the problem for Marotta is that the state of Kansas does not look favorably upon the crude, do-it-yourself conception methods used by the mother, and thus deems the agreement between the donor and couple irrelevant.  Where it concerns sperm donation for the purpose of artificial insemination, Kansas prefers that a licensed physician handle the heavy lifting.  KSA 23-2208(f) states: “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 in writing by the donor and the woman.”  KSA 23-2301 further states that, “[t]he technique of heterologous artificial insemination may be performed in this state at the request and with the consent in writing of the husband and wife desiring the utilization of such technique for the purpose of conceiving a child or children.”

These statutes bring to light at least three focal points for the litigants in the Marotta case, as it concerns the presumption that a sperm donor is not the father of a child conceived from his donation: 1) the semen must be provided to a licensed physician; 2) the restriction of artificial insemination to the written consent of “husband and wife” and mention of the donor’s wife; and 3) the possibility of rebutting the “not the father” presumption by providing a written agreement. 

Providing the Semen to a Licensed Physician

The Marotta dilemma is what happens when you do a home insemination and eschew the relatively minimal statutory requirements.  Without physician’s records, the DCF has no way of knowing whether a father was a true sperm donor or whether he is attempting to skirt his legal obligations by impregnating a woman through intercourse and later claiming to have been merely a sperm donor.

Accordingly, the statute accomplishes two things by requiring that donated semen be provided to a licensed physician in order to undergo artificial insemination: 1) the physician can accomplish the public policy goal of protecting the gestational carrier, or mother, and the resulting child by testing the semen for any communicable diseases; and 2) there will exist a record of the fact that the resulting child was actually conceived through artificial insemination rather than intercourse.  If the couple had used a physician to carry out the insemination, Marotta would be able to prove that he was a true sperm donor rather than someone who impregnated the mother through intercourse.

The Mention of the Donor’s Wife

One counter argument to the State’s case is that the Kansas law is outdated – that the mores of culture have changed such that the law’s language is homophobic in nature and puts a freeze on alternative family arrangements.  After all, Kansas’s voters approved a ban on same-sex marriage in 2005. Could the state be trying to send a message that reinforces the definition of family as a married man and woman, and their children?  This is entirely possible.  After all, the lesbian couple does not even qualify for legal artificial insemination according to the language of KSA 23-2301, since they do not fit into the “husband and wife” category, which the law permits to utilize artificial insemination with proof of written consent.  However, to delve into that rabbit hole would only obfuscate the legal question.  While the political implications of the case are inescapable, and could fill an entire book, the case must be decided on its legal merits.

Rebutting the Presumption by Written Agreement

A donor who provides his sperm to a licensed physician for the purpose of artificial insemination may rebut the presumption that he is not the father of the resulting child by providing a written agreement between him and the mother stating that he is the father.  In fact, in 2007, Kansas barred a sperm donor from asserting parental rights, stating that the statute precluded him from doing so unless he had spelled out that plan in a written agreement with the mother.  There, the sperm donor claimed he had a verbal agreement with the mother, yet the court would not find for paternity in his favor.  

However, here, Marotta’s agreement is not on point with the statutory exception.  Instead of asserting his paternity, Marotta’s agreement with the mother is an attempt to indemnify and hold him harmless for any support the child necessitates. Unfortunately for Marotta, he failed to satisfy the first prong of the statutory requirement: providing the sperm to a licensed physician.  Even so, Marotta has an argument.  Although the statute states that a sperm donor is not the father if a physician handles the insemination, the law does not specifically address the donor’s rights and obligations when no doctor was involved.  In other words, the statute has no teeth.  In that regard, the state’s suit for child support is essentially requesting that the court not only make a novel ruling, but also that it do “what no court has ever done,” as expressed by Marotta’s attorney.

Regardless of the court’s ruling, the major takeaway from Marotta is that donors who are not following statutory guidelines may be strictly liable for sperm donated for artificial insemination.  The most unfortunate point of this case is that Marotta’s current predicament could have been avoided had he sought legal counsel before undertaking a donation that has several legal implications.  Marotta is the case in point for why competent legal counsel should be retained before proceeding with any assisted reproduction arrangement.

Update: A judge has ruled against Marotta, who has been ordered as of this date to pay child support. He is expected to appeal. 

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