Waldlaw Blog

Saturday, January 05, 2013

Why the Kansas Sperm Donor Case Isn't News

I have been astonished, over the past week, to see the case where a Kansas sperm donor is being held responsible for financially supporting the child conceived with his sperm all over the news.  Stories about this case have run everywhere from the Wall Street Journal to the Huffington Post to tabloids.

Predictably, I have started receiving alarmed calls and emails from clients who are involved in sperm donation arrangements, wondering if they should be worried.  For the most part, the answer is a resounding NO.  Here's why:

(1) Kansas law on sperm donation is almost identical to California law on sperm donation.  It makes clear that a man who provides his sperm to a physician for purposes of inseminating any woman other than the man's wife is legally a sperm donor and not a father.  Anyone who wants to be a sperm donor, and therefore to be safe from liability for child support, just has to follow this law.  In California that means doing the sperm donation through any licensed physician or sperm bank -- of which there are many.  Had the folks in Kansas used a doctor to assist with the insemination, this case would never have happened.  Anyone who has seen an assisted reproduction attorney for advice prior to inseminating should know this.  And finding an assisted reproduction attorney in most states is easy: just go to the website for the American Academy of Assisted Reproductive Technology Attorneys (AAARTA) and there is a state-by-state listing.

(2) Most states have a preference that a child have two legal parents -- to provide care and support for the child -- but in many states, they don't care who the two parents are.  Had the folks in the Kansas case lived in California (or in about 20 other states throughout the country), even though they did not use a physician to assist them with the insemination, they could have completed a 2nd parent adoption after the baby was born in which the second mom became a legal parent and the donor's rights were terminated.  Sadly, because Kansas does not currently provide a way for two women both to be recognized as parents of the same child, this option wasn't available to the parties now involved in this high-profile mess.

And by the way, this has nothing to do with marriage equality.  I have seen a number of articles reporting that the second mother in this case isn't legally responsible for the child because of Kansas's constitutional amendment providing that only different-sex couples can marry.  This is mixing apples and oranges -- the two women could both be recognized as parents without being married, just like kids can have a mother and a father regardless of whether mom and dad are married.  Kansas needs to find a way to allow children being raised by same-sex couples to have two legal parents of the same sex -- typically through 2nd parent adoption -- whether or not it wants to allow same-sex couples to wed.

One more point: it is the responsibility of Departments of Child Support Services throughout the country -- in fact, it is their mandate -- to find parents to hold financially responsible for children wherever possible, rather than having those children's care fall on the taxpayers.  The Kansas Department of Child Support Services is simply doing their job.  As far as I can tell, they are not the "bad guys" here.

The problems highlighted by the Kansas case have simple solutions:  (1) people becoming parents through assisted reproduction need to understand the laws of the states in which they live -- and then follow them; and (2) states need to make it simpler for people parenting children -- including same-sex couples -- to take legal responsibility for those children.  With those two changes, cases like this would never again need to happen.


  • The Kansas sperm donor case only isn't news because it's happened in other states. In Pennsylvania a few years ago, a court (I believe the Superior Court, our appellate court) held that a sperm donor was responsible for child support despite an express agreement to the contrary. Luckily the PA Supreme Court overruled and we are safe in PA now.
    We used fresh donor sperm in CT, not going through a doctor for a variety of reasons that I wish these laws respected. 1. Our insurance didn't cover it and we couldn't afford to use a doctor for insemination. We were grad students and having a baby at all was tough for our budget. 2. Fresh sperm is more effective but most doctors won't work with fresh sperm. 3. We really didn't need IUI or any assistance from a doctor--both our donor and my wife were in their 20s and very fertile. My wife got pregnant the second time we tried it in our very low-key, non-medicalized manner.
    We were in Connecticut at the time, where our marriage was recognized and so I as the non-bio parent was put automatically on the birth certificate as the second parent. However, we knew we were moving to PA, so we made sure to officially terminate the donor's rights and I did a 2nd parent adoption while we were still in CT. This was fairly tricky and expensive, as CT's standard step-parent adoption forms didn't account for same-sex parents and known donors.
    I just wanted to share our experience to note that it's not always that people need to follow the laws of the states in which they are living, but that these situations can be tricky and expensive, especially if multiple states' laws are involved. If I had not been a law student at the time with access to legal databases to research CT and PA laws, I doubt that I would have even known that this could be an issue.

    By Blogger Zach, at 7:48 PM  

  • I agree that not all states have laws that are easy to follow, or that all states offer appropriate protections. But there is no short cut to consulting an attorney OR doing the necessary research to understand the laws of the state in which one is having children. While it is unquestionably expensive to do things "right" (by which I mean according to state law), it is far more expensive to do things "wrong" and then end up in a legal battle. I have no doubt that the folks involved in this current lawsuit will end up spending far more trying to fix the problem than they would have spent preventing it.
    In California, we are working hard to make our laws more "user-friendly" for folks wanting to conceive through assisted insemination. But even where the law is not ideal, people choose not to follow it at their own -- and their children's -- peril.

    By Blogger Deborah Wald, at 9:06 AM  

Post a Comment

<< Home