Court: Marotta is a father, not merely a sperm donor
Ruling 'appears' to be first of its kind in Kansas
Posted: January 22, 2014
By Steve Fry
THE CAPITAL-JOURNAL
A Topeka man who donated sperm to a lesbian couple is the presumptive father to a baby one of the woman bore and is subject to paying child support, a Shawnee County District Court judge ruled Wednesday.
In her written decision, District Court Judge Mary Mattivi said that because William Marotta and the same-sex couple failed to secure the services of a physician during the artificial insemination process, he wasn’t entitled to the same protections given other sperm donors under Kansas law.
“Kansas law is clear that a '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,' ” Mattivi wrote.
“In this case, quite simply, the parties failed to conform to the statutory requirements of the Kansas Parentage Act in not enlisting a licensed physician at some point in the artificial insemination process, and the parties’ self-designation of (Marotta) as a sperm donor is insufficient to relieve (Marotta) of parental rights and responsibilities" to the child, the judge concluded.
Marotta contended he was only a sperm donor to a same-sex couple seeking a child, but the Kansas Department for Children and Families argued he is a father who owes child support to his daughter. The girl is 4 years old.
The requirement to include a licensed physician in the artificial insemination dates to 1973 when the Uniform Parentage Act came into being and was adopted by Kansas, Mattivi said.
The judge noted it is "uncontroverted" that the semen in this case wasn't provided to a licensed physician.
"Accordingly, the statute as written does not afford (Marotta) the bar to paternity that he seeks," she wrote.
The Marotta decision "appears" to be a case of first impression in Kansas, the judge said. That means a specific issue in the ruling hasn't been dealt with before in that court, and there isn't binding authority on the matter.
In a similar case in 1986 in California, a court ruled that a man seeking to be involved in a child's upbringing was the father, not just a sperm donor, because the parties didn't use a licensed physician in the artificial insemination process.
Both sides asked Mattivi to issue a summary judgment in their favor. A summary judgment is a determination made by a court without a full trial.
Benoit Swinnen, an attorney representing Marotta, said he was “disappointed” but “not totally surprised” by the decision. As of Wednesday afternoon, Swinnen said he didn’t know his client’s reaction because he hadn’t yet been able to speak with him.
Swinnen said he “absolutely” would appeal the case if that is Marotta’s intention.
Phyllis Gilmore, secretary of the Kansas Department for Children and Families, in a written statement Wednesday said that state law clearly states that people must go through a licensed physician to avoid financial responsibilities of parenthood.
“We appreciate the judge’s careful consideration and attention to the law,” Gilmore said.
During oral arguments, Mattivi heard from Timothy Keck, co-lead counsel for the state; Swinnen; Jill Dykes, guardian ad litem for the child; and Jennifer Berger, attorney representing the child’s mother, Jennifer Schreiner.
The Kansas Department for Children and Families filed the case in October 2012 seeking to have Marotta declared the father of a girl Schreiner bore in 2009.
Marotta opposed the action, saying he didn’t intend to be the child’s father, and that he had 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 partner. Marotta contacted the women after they placed a Craigslist ad seeking a sperm donor.
During closing arguments Oct. 25, Keck said the case focused on child support. Swinnen countered by citing several court rulings he said support the argument Marotta was legally a sperm donor and not required to pay child support.
Swinnen contested the Kansas statute, saying it didn’t specifically direct that the artificial insemination must be carried out by a physician.
The state has been seeking to have Marotta declared the child’s father so he can be responsible for about $6,000 in public assistance the state provided, as well as future child support.
The documents show Schreiner indicated she didn’t know the name of the donor or “have any information” about him in her application for child support. But a sperm donor contract between Marotta and the couple includes his name, and the agency noted the couple talked about their appreciation for him in an interview with The Topeka Capital-Journal.