Sperm donor asks Supreme Court to block his genetic testing
Motion filed at last minute Friday in 2012 case
Posted: March 21, 2014
By Steve Fry
THE CAPITAL-JOURNAL
Just before the 5 p.m. deadline on Friday, the attorney representing a Topeka man who provided sperm to a same-sex couple to become pregnant filed an appeal to the Kansas Supreme Court asking justices to direct a district court judge to block genetic testing of the man.
The order sought, called a writ of mandamus, also would instruct Shawnee County District Court Judge Mary Mattivi to conduct a Ross hearing to determine whether genetic testing would be in the best interests of the 4-year-old girl born as a result of the sperm provided to the couple.
A mandamus orders a public agency to perform an act required by law when it has neglected or refused to do so.
Topeka attorney Benoit Swinnen represents William Marotta, who gave the sperm to the couple.
"The state's claim that this action is merely a collection action for child support belies the reality that the child's emotional and physical well-being is being ignored," Swinnen wrote in the motion."The state is shopping for a person that can afford to pay and is hanging on the storefront a sign saying 'Males Only' that is reminiscent of discrimination patterns that society no longer tolerates."
Short of an order issued by the Kansas Supreme Court, Mattivi should proceed to resolve the Craigslist case, Timothy Keck, co-lead counsel for the Kansas Department of Children and Families said earlier this week in answer to Swinnen's March 14 motion seeking a 14-day stay of Mattivi order to conduct genetic testing.
On March 13, Mattivi issued two orders, one granting the state's request for an order requiring Marotta to undergo genetic testing and the other denying a guardian ad litem's request for an parenting-best interest evaluation of the 4-year-old girl. The judge said the evaluation isn't necessary.
"Because the action DCF seeks merely to recoup benefits paid and establish support for (the child), the court finds that evaluation by a third party simply isn't necessary here," Mattivi wrote in the order dealing with the evaluation request.
On March 14, Swinnen said during a district court hearing he told Marotta to not voluntarily submit to genetic testing. Swinnen gave those instructions to Marotta after he filed a motion that day asking the judge to stay all proceedings in the case for 14 days.
Mattivi issued a summary judgment Jan. 22 in favor of the DCF concluding Marotta is the father of a 4-year-old girl born after he gave sperm to a Topeka same-sex couple.
The DCF filed court documents in October 2012 seeking to have Marotta declared the father so he can be forced to pay child support regarding a girl Jennifer Schreiner bore in 2009.
Marotta said he didn’t 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. Mattivi concluded their contract was moot because those involved didn’t follow a Kansas statute enacted in 1994, which Mattivi ruled requires a licensed physician to perform the artificial insemination in cases involving sperm donors.
Swinnen also filed a motion asking the justices to consider the writ of mandamus "expeditiously."