A Kansas man who signed away any parental rights when he donated sperm to a Topeka couple is now being pursued by the state for child support after the mother received financial assistance for the baby.The problem arises because the mom got bored with her lesbian mate, and found a boyfriend instead. But they are not married, and he has not adopted the child. When the mom went on welfare, the agency tries to collect reimbursement from the dad. Since the boyfriend could not be held accountable, it went after the sperm donor.
A lawyer for William Marotta argues that the state’s effort to have Marotta declared the baby’s father runs contrary to a 2007 Kansas Supreme Court ruling on sperm donors, The Topeka Capital-Journal reported. ...
Marotta, a Topeka mechanic who has taken in foster children with his wife, answered a Craigslist ad in 2009 from a lesbian couple seeking a sperm donor. ...
Marotta, Bauer and Schreiner signed an agreement saying Marotta would be paid $50 per semen donation, with the arrangement including a clear understanding that he would have no parental rights whatsoever with the child or children.
The agreement also called for Bauer and Schreiner to hold Marotta harmless “for any child support payments demanded of him by any other person or entity, public or private, including any district attorney’s office or other state or county agency, regardless of the circumstances or said demand.” ...
The Kansas courts have ruled that a sperm donor has no legal rights to the child, but the court is threatening to make this sperm donor pay anyway.
Slate's William Saletan tells it differently:
They tried a sperm bank, but their doctor, according to Bauer, refused to sign a document saying they were fit to raise a child. So they posted an ad on Craigslist.And they had medical and financial problems, and went on welfare.
William Marotta, a fellow foster parent, answered the ad. He and his wife exchanged emails with the couple and visited their home. He wanted to be sure that the child would be well cared for. In March 2009, he donated his sperm, waived compensation, and signed a contract renouncing parental rights and responsibilities. Schreiner carried the pregnancy. Nine months later, she and Bauer had their baby girl.
A year after the birth, in December 2010, Bauer and Schreiner split up.
I don't get where some stupid physician gets to decide whether this couple was fit to rear a child, but he was correct in this case. This couple only lasted one year, and everything unraveled. Everyone would have been better off if the sperm donation never took place.
The physician's reasoning is not known. Based on the picture, he might not have even noticed that the mom's partner is a woman.
Kansas law says that the sperm donor is not a legal father if the mom uses a licensed physician. It is a reasonable law because the intent of all parties is clear in that case, and most other states have similar laws. So the woman just had to use a physician. If it is really true that her personal physician did not approve, she could have just gotten another physician or travel to another state for the donation.
Saletan somehow concludes that this is a conservative argument for same-sex marriage:
But the problem at the core of this fiasco isn’t that Kansas won’t let a noncustodial parent renounce her obligations. The problem is that when the couple is two women, Kansas won’t let that parent — in this case, Bauer — undertake those obligations. If the nine-year, multi-foster-child relationship between Bauer and Schreiner had been legally recognized, with Bauer formally named as the second parent on their daughter’s birth certificate — and perhaps if it were easier for lesbian couples to access sperm banks instead of resorting to Craigslist — the chain of parental responsibility would have been clear.This is nonsense. The sperm donor can renounce his obligations by using a physician and a standard anonymous donor contract. A mom has nine months in which she has the choice to get an abortion, so applying rights equally would give the dad nine months to renounce his obligations.
This is what makes the resistance to same-sex marriage, in Kansas and many other states, so exasperating. In family policy, conservatives are right about so many things. Children do better when they’re raised by two parents. Stability is best, and marriage promotes stability. And parents, not taxpayers, are responsible for their children. The state has every right to identify and enforce that responsibility. The best way to honor these principles isn’t to abandon or pervert them when the couple in question is gay. The best way is to apply them equally.
Saletan calls Bauer a parent, but she was neither a biological nor legal parent. He says it is better to be raised by two parents, but the studies show that kids are best reared by their natural parents, not lesbian couples. He says that the state should make the parents responsible, but that is exactly what Kansas is trying to do.
Even if Kansas had issued these lesbians some sort of marriage certificate, their physician could still have been of the opinion that they were unfit for sperm donation, and he would be right.
Whether same-sex marriage is permitted or not, lesbians will continue to be inseminated by men and then attempt fatherless upbringings for the resulting kids. Lesbian marriages seems like just a legal ploy to deprive kids of dads. No good will come of it.
You might think that if the lesbians were married under Kansas law, then they would be presumed to be the legal parents, and no one else could be the legal father. But it is not that simple. As explained before, same-sex marriage drives the push for three or more legal parents to be recognized. Even under existing California law, a lesbian domestic partner and a biological father can both be presumed fathers. As a recent 2011 case explained:
Increasingly, as aptly illustrated here, the complicated pattern of human relations and changing familial patterns give rise to more than one legitimate claimant to the status of presumed parent, and the juvenile court must resolve the competing claims. As the Supreme Court explained in Jesusa V., "[a]lthough more than one individual may fulfill the statutory criteria that give rise to a presumption of paternity, `there can be only one presumed father.' [Citations.]"So even if a lesbian domestic partner is a presumed parent, that might be outweighed by the biological father being a presumed father. Furthermore, that California court refused to declare the lesbian domestic partner to be a presumed father:
The issue of whether Irene qualifies as a statutorily presumed mother is not before us. We note, however, that another court may be called upon to address whether a gender-neutral reading of the UPA is a "practicable" application, in light of the fact that the primary statutory goal is to determine "paternity," not "parentage."I did not follow all for that, but what I get from it is that no California appeals court has actually endorsed this concept of a lesbian partner being the presumed partner, and the California statutes are inconsistent with no easy fix.
For example, under section 7540, "the child of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage." As M.C. points out, a gender-neutral reading of this statute, which presumes a husband is capable of impregnating his wife, would be absurd as applied to a same-sex cohabiting couple. It is similarly difficult to imagine what legitimate purpose would be served by a voluntary declaration of "parentage" — as opposed to a declaration of "paternity" — under section 7570, as it stands now. The clear purpose of such declarations is to establish paternity, not just for purpose of providing the child access to benefits, but also to provide knowledge of the child's medical and genetic history, which may be necessary for purposes of his or her medical diagnoses and treatment. In light of the rapidly changing nature of familial relationships, few if any of which were on the horizon at the time the UPA was adopted in 1975, we agree the Legislature would be wise to expand the concept to include, for example, the lesbian couple where one partner or spouse is impregnated through an anonymous sperm donation, or the gay male couple where a surrogate carries to term the child of one partner or spouse. But, as it stands now, a declaration of "parentage" under the UPA is not encompassed within the statutory scheme.
Thus Saletan and the LGBTQ lobby might argue that same-sex marriage would simplify certain child custody issues, but I very much doubt it. The confusion is going to give judges more power, and deny parental rights.
Update: A reader disputes my analysis of California parentage law, and sends this 2005 NY Times story:
The California Supreme Court ruled yesterday that both members of a lesbian couple who plan for and raise a child born to either of them should be considered the child's mothers even after their relationship ends.This 2005 CS Monitor story says the same thing. A National Center for Lesbian Rights pamphlet says:
The court, stepping into largely uncharted legal territory concerning same-sex couples and parenting, issued decisions in three cases, ruling that women whose partners gave birth had parental rights or obligations in all three.
The cases involved a request for child support, a petition to establish parental rights and an attack on a lower court ruling issued before a child's birth that the child should have two women listed as parents on her birth certificate.
"We perceive no reason," the Supreme Court ruled, "why both parents of a child cannot be women."
Will my partner and I both be legal parents of children born to us during our registered domestic partnership?Here is that 2005 California supreme court decision saying that the lesbian domestic partners can both be parents. That decision is cited in the above 2011 decision, so the above 2011 decision should be considered a better summary of current law.
The law now provides that “[t]he rights and obligations of registered domestic partners with respect to a child of either of them shall be the same as those of spouses.” This means, among other things, that a child born to registered domestic partners automatically will be considered the legal child of both partners, regardless of their biological connection to the child.
The Kansas sperm donor would not have been a legal father if he had used a licensed physician. California makes the same distinction, and its Uniform Parentage Act (UPA) requires "the supervision of a licensed physician and surgeon and with the consent of her husband". The 2005 cases involved assisted reproduction by licensed physicians, and therefore the lesbian partners were the only ones with a claim to parentage. If a lesbian couple in California used a Craigslist sperm donor, then they would be back in uncharted legal territory even if they were registered domestic partners. So I still say that a same-sex marriage law in Kansas would not have solved that case.