Parties in sperm donor case point to appellate ruling
Posted: March 8, 2013
By Steve Fry
THE CAPITAL-JOURNAL
The Kansas Court of Appeals issued a ruling Friday focused on parenting by a same-sex couple, and hours later the case was cited in the Craigslist case in Shawnee County District Court.
In the Craigslist case, the state of Kansas contends William Marotta, a Topeka man who answered a Craigslist ad in which two Topeka women were seeking a sperm donor, is a father owing child support for a 3-year-old girl.
Marotta and the same-sex female couple he provided the sperm to say he simply is a sperm donor and has no financial responsibility to the child.
On Friday, the Kansas Court of Appeals ruled in a case involving Bree Downs, who is seeking recognition of a mother-child relationship with a son conceived through artificial insemination during her relationship with Tiffani Gilmore.
During a hearing Friday, Joe Booth, a family law attorney from Lenexa who represents Angela Bauer, said that according to the Downs ruling and the Feb. 22 ruling in Frazier v. Goudschaal in the Kansas Supreme Court, his client has a right to be a parent under the law.
Bauer is seeking to intervene as a party in the state's action against Marotta.
Shawnee County District Court Judge Mary Mattivi has taken the motion to intervene under advisement and will issue a ruling.
According to the Downs case, Downs and Gilmore had a committed relationship, the child was conceived through artificial insemination, Gilmore carried the child, and the women co-parented the child, the appellate court opinion said.
When the relationship ended, Downs filed suit seeking recognition of a mother-child relationship between herself and the boy. Seward County District Court dismissed the case, saying Downs didn't have standing under the Kansas Parentage Act.
The appeals court cited the Feb. 22 Kansas Supreme Court case of Frazier v. Goudschaal and reversed the Seward court ruling. The appeals court ruling in the case is an unpublished opinion.
In Frazier v. Goudschaal, the justices upheld the right of a same-sex partner in a co-parenting relationship to petition courts on matters of child visitation or joint custody.
Timothy Keck, co-lead counsel for the Kansas Department of Children and Families, said the two appeals cases were different from the Craigslist case in which the state seeks child support from Marotta.
"That's it," Keck said.
Benoit Swinnen, Marotta's attorney, disagreed, saying Bauer does have standing based on the two Kansas cases.
"Mr. Keck is attempting to rule on the merits (of the case) before we rule on the standing," Swinnen said. Standing means a party's ability to bring a legal action.
On Friday, Mattivi denied a motion by Swinnen to disqualify Keck as an attorney in the case. Swinnen contended Keck couldn't act as an attorney after he and an investigator interviewed Bauer, which would make Keck a witness.
During Friday’s hearing, six attorneys representing four parties appeared before Mattivi. Three attorneys represented the state of Kansas, Swinnen represented Marotta, Jill Dykes was guardian ad litem for the 3-year-old girl, and Booth was the attorney for Bauer.
Jennifer Schreiner, the biological mother of the 3-year-old, and Marotta weren't present during the hearing.
Next up in the case is a scheduling conference on April 9, then a hearing on June 17 to determine whether genetic testing to identify the parents would be in the best interests of the girl, 3.
The state contends Marotta, Bauer and Schreiner didn't follow Kansas law, which requires a physician to perform the artificial insemination in order for Marotta to be considered a sperm donor.
In this case, Bauer did the artificial insemination on Schreiner "at home implementing a syringe and catheter purchased at a local medical supply store," Keck wrote.