State: Wrong interpretation in sperm donor case would create 'culture of chaos'
Attorneys present opinions in case involving Topeka sperm donation
Posted: August 23, 2013
By Tim Hrenchir
THE CAPITAL-JOURNAL
Attorneys in the Craiglist case are discussing the state’s assertion that a “culture of chaos” would result from the Kansas judiciary’s taking the side of sperm donor William Marotta.
Representatives for Marotta and the Kansas Department for Children and Families recently filed motions in a case the DCF filed in October seeking to have Marotta, a Topekan, declared the father of a girl Jennifer Schreiner bore here in 2009.
Marotta is fighting the action. He says he did not intend to be the child’s father, and signed a contract waiving his parental rights and responsibilities while agreeing to donate sperm in a plastic cup to Schreiner and Angela Bauer, who was then her lesbian partner.
Marotta contacted the women after they placed an ad seeking a sperm donor on Craigslist. The state contends their contract was moot because those involved didn’t follow a Kansas statute enacted in 1994, which the state says requires a licensed physician to perform the artificial insemination in cases involving sperm donors.
The statute, KSA 23-2208(f), says: “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 to in writing by the donor and the woman.”
The case is being heard by Shawnee County District Judge Mary Mattivi.
Motions seeking summary judgment in their favor were filed in May by Timothy Keck, co-lead counsel for the state, and in July by attorney Benoit Swinnen, representing Marotta.
A summary judgment is a determination made by a court without a full trial.
Keck filed a 11-page response Aug. 9 to pleadings previously filed by Marotta and other attorneys involved in the case.
The response included a statement that: “To adopt the interpretation of KSA 23-2208(f) purported by the other pleadings in this case would create a culture of chaos in the arena of establishing paternity. The court is certainly aware of the thousands of cases in Kansas alone where the ‘father’ who ‘delivered’ the semen to a mother in the ‘traditional method’ -- i.e. through sexual intercourse -- and who did not intend to be a father to the potential child that could come from the sexual intercourse. Yet, Kansas and every other jurisdiction pursue those donors of semen for support obligations despite their lack of intent or desire to be a father.’”
Keck indicated Marotta clearly intended to bring a child into the world.
He wrote: “Why is his intent to bring forth a child into this world secondary to his intent to not be a parent? Why should the court and the legal system treat the sexual intercourse donors differently and more accountable than the donor who participated by delivering the semen in a specimen cup? Imagine the scene in courtrooms across Kansas on the days when the child support establishment and enforcement staff are having cases brought before the court and a potential father, albeit one who ‘donated’ semen the old fashioned way through sexual intercourse, says to the District Court: ‘I’m not a father. I didn’t intend to be a father; therefore I am not responsbile for support obligations.”
Keck added that Marotta, as a non-traditional donor, is even more culpable than the traditional donor because he “donated his semen for the exclusive and concerted purpose of creating a child. Whereas, the ‘traditional’ donor did not even have the intent to impregnate his sexual partner.”
Swinnen responded to that argument as part of a 17-page reply he filed Tuesday, accompanied by supporting documents.
He wrote: “The State here is expressing a very curious, and, one might argue, debased view of sexual intercourse -- where men approach women exclusively for the purpose of sensual gratification and females approach men solely for the purpose of obtaining sperm. It is rather extraordinary that the State, which has appealed so much in this case for the preservation of traditional family values, would so openly declare that (Marotta) is ‘more culpable’ than a man who treats women as mere sex objects. One must then ask, ‘Culpable for what?’ Certainly not for ravishing women in violation of various stark commandments in the sacred writ, of which the State apparently approves; but for intending to help create a child, an intent for which one could easily find sanction from the same high authority; and it is this intent on (Marotta’s) part which so infuriates the state.”
Swinnen added that Marotta “is tainted with the stain of intending to create a child.”
He argued that every sperm donor could just as easily be charged with having that intent, including those who did not provide their sperm to a licensed physician, “which makes the State’s argument that it is only going after those donors who did not have physician involvement sound rather hollow. But what the Response is saying is that the State must be intimately involved in the acts of reproduction, policing the parties’ purposes and intents, their family arrangements and ideological orientations.”
Swinnen added that it was “highly improbable” that the chaos Keck described in his response would materialize because that scenario “ignores the fact that under the 2002 (Uniform Parentage Act) and the law of nearly all states, there already is a strong presumption of non-paternity for sperm donors, and yet no one has yet noticed this reign of chaos and deluge of fraudulent defense to paternity suits.”