Sperm Donor Liability | A New Trend?

It has not been unusual for gay and lesbian couples to arrange privately for surrogacy or for a donation of sperm from a friend or third party in order for a couple to inseminate one of the lesbian partners so that they can bring children into their family. A recent case involving the latter method of procreation may result in lesbian partners being forced to use clinics approved for A.R.T. rather than an informal gift from a friend or acquaintance.

A Kansas man, William Marotta, donated sperm to a lesbian couple after answering a Craigslist ad placed online by Angela Bauer and Jennifer Schreiner. Bauer and Schreiner were seeking a sperm donor. After exchanging emails and meeting, the three signed an agreement relieving Marotta of any financial or paternal responsibility. The couple accomplished the artificial insemination themselves using a syringe, and Schreiner eventually became pregnant. Late last year, after she and Bauer broke up, because Kansas does not recognise same-sex marriage, Schreiner, who bore the child, was awarded sole custody, Bauer was not liable for  child support, and Schreiner applied for Title IV-D benefits. So the state came after Marotta for child support.

The significant issue in this case is the fact that no doctors were used for the artificial insemination. Kansas argues that because William Marotta didn't work through a clinic or doctor, as required by state law, he can be held responsible for about $6,000 that the child's biological mother received through public assistance – as well as future child support.

A 1994 Kansas law provides that a sperm donor isn't considered the father only when a donor provides sperm to a licensed physician for artificial insemination of a woman who isn't the donor's wife.

In October 2007, the Kansas Supreme Court ruled that a sperm donor can't legally be considered a child's father if he through a licensed physician, and that he doesn't have the right to visit the child or have a role in its upbringing unless the parties have a formal, written agreement. That case is obviously different from Marotta'ssituation, since the sperm donor was seeking access to a child and he had only an informal arrangement with the child's mother, not a written contract.

Linda Elrod, a law professor and director of Washburn University's Children and Family Law program, said the law seems clear: Sperm donors who don't want to be held liable for child support need to work with a doctor. "Other than that, the general rule is strict liability for sperm," said Elrod, who filed a friend-of-the-court brief in the Supreme Court case.

At least 10 other states have similar requirements in their laws, including California, Illinois and Missouri. The Kansas Department of Children and Families said that when a single mother seeks benefits for a child, it's routine for the department to try to determine the child's paternity and require the father to make support payments to lessen the potential cost to taxpayers.

But the Kansas Department for Children and Families argues the agreement signed by Marotta and the two women relieving Marotta of any financial or paternal responsibility. isn't valid, because instead of working with a doctor, Marotta agreed to drop off containers with his sperm at the couple's home.

In October 2011, the department filed a court petition against Marotta, asking that he be required to reimburse the state for the benefits and make future child support payments. Marotta is asking that the case be dismissed, arguing that he's not legally the child's father, only a sperm donor. Marotta promises to take an aggressive position and to take the case as far as the Kansas Supreme Court, if necessary. Litigation is underway in Kansas.

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