Kansas Supreme Court freezes genetic testing in Craigslist case
State seeks child support from man who gave sperm to same-sex couple
Posted: May 5, 2014
By Steve Fry
THE CAPITAL-JOURNAL
A two-paragraph order issued Friday by the Kansas Supreme Court froze genetic testing of a Topeka man who provided sperm to a same-sex couple to become pregnant.
Supreme Court justices "have said procedurally, stop, don't do anything," Topeka attorney Benoit Swinnen said Monday. Swinnen represents William Marotta, who gave the sperm to the couple. The justices are saying: "We're considering. For now, we need time."
The Friday order implies the Supreme Court soon might issue a more extensive order or analysis in the Craigslist case.
Craigslist refers to the online site where a same-sex female couple placed an ad seeking a sperm donor.
On April 30 and March 13, Shawnee County District Court Judge Mary Mattivi ordered genetic testing to go forward.
In the April 30 order, Mattivi sent an email to attorneys representing Marotta and the state of Kansas.
Mattivi noted that Swinnen filed an action in the Kansas Supreme Court on March 21 asking the justices to order Mattivi to block genetic testing of Marotta. The order sought by Swinnen on March 21 also would instruct the judge 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.
Mattivi noted the Supreme Court hadn't ruled on the Swinnen filing as of April 30.
"Please, consult with each other to arrange for genetic testing at your earliest possible convenience," the email order said. "Testing should be complete within the next 14 days days," which would have been May 14.
The email order was attached to a May 1 motion filed by Swinnen asking the justices to freeze the genetic testing.
Mattivi issued a summary judgment Jan. 22 in favor of the Kansas Department of Children and Families, concluding Marotta is the father of a 4-year-old girl born after he gave sperm to the 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 for 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.
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 a parenting-best interest evaluation of the 4-year-old girl. The judge ruled 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.
"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 March 21 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."