Kansas Sperm Donor Targeted by State: Collateral Damage of Marriage Ban

by Stephen H. Miller on January 9, 2013

Much is being made of the sperm donor to a lesbian couple who is now being sued by the state of Kansas for child support, after the lesbians broke up and the birth mother applied to the state for financial help (after which, at the request of the state welfare agency, she provided the name and contact info for the sperm donor). The donor had no relationship to the child or the mother; he had originally responded to a Craigslist ad seeking a donor, and had signed a contract with the lesbian couple absolving him of all parental rights and responsibilities including financial support.

As Hot Air correctly points out, if Kansas recognized same-sex marriage and the lesbian couple had been wed, then the state would have properly pursued the now-ex, who by right of marriage would have been a second legal parent, for financial support. But without marriage, the ex is a legal stranger in this case. So now, it’s a mess—an embarrassment to the state, possibly ruinous for the innocent sperm donor, and (despite this case’s particulars) a threat to the system of sperm donorship due to all the fearsome publicity.

{ 13 comments }

Jorge January 9, 2013 at 9:13 am

I did not know they had broken up.

Fascinating observation.

So now, it’s a mess—an embarrassment to the state, possibly ruinous for the innocent sperm donor, and (despite this case’s particulars) a threat to the system of sperm donorship due to all the fearsome publicity.

That such a situation is actually considered a “mess”, an “embarrassment”, even a “threat to the system of sperm donorship” in the first place is, of course, very good for the prognosis of the gay marriage movement.

That it’s possibly ruinous for the sperm donor, not so much.

Houndentenor January 9, 2013 at 10:04 am

As much as I enjoy poking fun of lawyers, (I used to work for them so my disdain is from first hand experience) this was a situation that called for consulting an attorney before making a major life decision. “Yeah, I’ll just donate some DNA so my friend can have a baby. What could possibly go wrong?” A lot, obviously. This is a good lesson that you need to know what the law is, not what would make sense to a reasonable person. Too many states have laws made by unreasonable people or have not kept up with the current state of our culture and technology. Hopefully the courts will realize the idiocy of going after a sperm donor for child support rather than the child’s parent. But I wouldn’t count on that too much unless this gets past the state courts in a place like Kansas.

But Stephen is right, this is yet another example of a problem that comes from treated gay couples with a different set of rules that straight ones. Would they have gone after a sperm donor instead of a live-in boyfriend who helped raise the child?

Tom Scharbach January 9, 2013 at 10:43 am

Stephen’s observation about marriage is interesting, but is (at least arguably) legally irrelevant. Whether or not the donee was married is not the legal point on which the Kansas case turns.

Under Kansas law, as is the case in quite a number of states, private sperm donors are liable, vis a vis the state, for child support, regardless of a private agreement between donee and donor to the contrary. On the other hand, donors who donate through regulated sperm banks, providing sperm to be used by doctors, are exempted from liability under the law. As the Kansas law is written, the donor would be liable whether or not the donee was straight or lesbian, married or unmarried.

Tom Scharbach January 9, 2013 at 10:49 am

But Stephen is right, this is yet another example of a problem that comes from treated gay couples with a different set of rules that straight ones. Would they have gone after a sperm donor instead of a live-in boyfriend who helped raise the child?

That’s an interesting question. The obligation of the DCF to pursue the biological father seems to be mandatory under Kansas law, so the answer, logically, should be that the state would go after the sperm donor in cases where there was a live-in boyfriend and even in cases where the donee was married. Whether that would happen as a practical matter is doubtful.

Jorge January 9, 2013 at 8:09 pm

Whether or not the donee was married is not the legal point on which the Kansas case turns. . .

Oh, right.

No.

This varies by state, but in New York, if you’re a man who is married to a woman, and your wife has a child, there may be a presumption that you are the legal father. The family court judge can refuse to order a DNA test and say it is against the best interests of the child based on a presumption of legitimacy of a child born to a married woman. Thus, if your wife received the sperm from a private donor, you are still the father.

Ah, but this isn’t just about marriage. Also in New York, if you’re a man who is not married to a woman, and you claim to be the father of the child and act like it, then you are considered the legal father. The judge can say you don’t even have a right to a DNA test to question your paternity. If your wife without the ring received the sperm from a private donor, you’re still the father. Of course, that depends on her claiming to welfare that you and not the sperm donor is the real father.

Paternity and child support laws were created for a world in which men impregnate women. You cannot homosexualize these zany heterosexual laws overnight. Did the woman seeking government benefits claim her baby mama was the child’s father? Stephen’s observations are not legally irrelevant at all. If anything, they are more relevant for being so decisive they are not even eligible for consideration than points on which this case may “turn” either way.

Jorge January 9, 2013 at 8:13 pm

Mind you, in both cases I said the judge, while in this case we haven’t gone before one yet. The judge will need to issue a ruling at least once.

Tom Scharbach January 9, 2013 at 8:48 pm

This varies by state, but in New York, if you’re a man who is married to a woman, and your wife has a child, there may be a presumption that you are the legal father.

The legal fiction is exactly as you described it — a presumption, one that can be overcome by evidence to the contrary. Sperm donation is almost certain to be enough evidence to overcome the presumption.

New York law is New York law, of course, but the Kansas law concerning CFW child support was not written in New York, and a donor might well find himself being pursued by the CFW despite the marital status of the donee.

You cannot homosexualize these zany heterosexual laws overnight.

I love the phrasing — “homosexualize”. The Kansas case has nothing to do, legally, with the sexual orientation of the donor or the donee. It turns on the question of whether or not the sperm donation was made through a doctor, not irrelevant factors.

As Houdentenor correctly pointed out, the donor and the donee should have both obtained, and followed, legal advice in this matter. It is good advice in general to know the law before you run afoul of it.

Jorge January 10, 2013 at 1:09 am

The legal fiction is exactly as you described it — a presumption, one that can be overcome by evidence to the contrary. Sperm donation is almost certain to be enough evidence to overcome the presumption.

If a DNA test can be denied–you can’t even ask what the genetics are–can a judge not also ban from consideration any inquiries about whether or not there has been a sperm donation? Especially upon a finding that a child has a presumptive legal father? That is, the evidence cannot be introduced at all. There was a “valid” abdication of parental responsibility agreement. I realize I just engaged in circular reasoning. I am making an assumption that such a decision is made earlier in the paternity hearing rather than later.

The reason for the presumption that so-and-so is the legal father is not the interests of truth and evidence, it’s the best interests of the child. Ordering a DNA test in situations in which there is a clearly identified father (for lack of a better description) is unnecessarily disruptive to the stability of the child who already has a father figure. So the argument goes that for lesbian parents, the other mother should be clearly identified father figure and the evidence that she is or is not is what should be sought. That is what one or both “parents” are probably going to claim in this case.

I love the phrasing — “homosexualize”.

And I use the word intentionally to point out that the law is both heterosexist and rational. You are trying to say it’s only rational while Mr. Miller doesn’t mention the possibility it could be rational. I find myself less interested in this case by the hour.

The Kansas case has nothing to do, legally, with the sexual orientation of the donor or the donee.

Do you know whether or not, when the mother was asked “who is the father?”, she named her ex-partner?

Tom Scharbach January 10, 2013 at 8:33 am

So the argument goes that for lesbian parents, the other mother should be clearly identified father figure and the evidence that she is or is not is what should be sought. That is what one or both “parents” are probably going to claim in this case.

The reason for the presumption that so-and-so is the legal father is not the interests of truth and evidence, it’s the best interests of the child. Ordering a DNA test in situations in which there is a clearly identified father (for lack of a better description) is unnecessarily disruptive to the stability of the child who already has a father figure. So the argument goes that for lesbian parents, the other mother should be clearly identified father figure and the evidence that she is or is not is what should be sought. That is what one or both “parents” are probably going to claim in this case.

The idea of “fatherhood” in a lesbian relationship strikes me as an exercise in sophistry. What’s wrong with “parent”? Or, if that phrasing would offend the religious zealots, how about “person responsible for support of the child”?

The Kansas law establishes liability for support of the child. It does not establish or define other parental rights or obligations, — custody, for example.

Neither parent is going to claim that the non-donor lesbian in this relationship is the “father” in this case because it is legally irrelevant. Under Kansas law, the donee is unmarried. Absent adoption of the child or a private support agreement, the non-donee lesbian in this relationship has no legal relationship to either the donee or her child, and is not liable for support of the child.

Do you know whether or not, when the mother was asked “who is the father?”, she named her ex-partner?

I have no idea. It is irrelevant to the Kansas law in question.

And I use the word intentionally to point out that the law is both heterosexist and rational. You are trying to say it’s only rational while Mr. Miller doesn’t mention the possibility it could be rational. I find myself less interested in this case by the hour.

I have no idea what you are talking about here, Jorge. It is true enough that the legitimacy presumption was developed at common law to established the legitimacy of a child at a time when women were chattel and property rights were confined to men.

The legitimacy presumption, although a legal fiction, has been important historically to preserve the stability of inheritance and help ensure the availability of financial resources for children. That will not change in the future.

Doug January 10, 2013 at 1:12 am

If the State is going to move in this direction then they should DNA test every divorced women with children to make sure they are actually her ex-husbands and not the result of an affair. I don’t think we want to go there. Courts have already ruled that the husband must pay child support to a woman whose child is the result of an affair.

Tom Scharbach January 10, 2013 at 8:14 am

I agree we don’t want to go there, Doug. The legitimacy presumption, although a legal fiction, has been important historically to preserve the stability of inheritance and help ensure the availability of financial resources for children. That will not change in the future.

Kansas, it seems to me, is over reaching in its quest to fund its coffers by seeking to require private sperm donors to pay child support. I understand the underlying rationale of the law — to avoid fraud (What is to stop a boyfriend or casual sex buddy from claiming that he was a private sperm donor?) and to maximize available resources. But nonetheless, the Kansas law, in my view, goes too far by removing discretion from CFW. This case would probably never have arisen if the law granted CFW the power to make sensible decisions.

clayton January 10, 2013 at 1:16 pm

Not a lawyer, but it seems to me that adoption laws play more of a role than marriage laws in this case.

In Louisiana, a child can be adopted by a single person, two single persons of different sexes, or a married heterosexual couple, but it cannot have two legal parents if both parents are the same sex. So, for example, a man may adopt the bio-child of a woman he lives with–whether or not they are married–but a woman could not adopt the bio-child of her female partner, because the result would be two parents of the same sex.

In this case, one female parent is biological, but my guess is that Kansas law prevented the other female parent from legally adopting the child and becoming its recognized second parent. If Kansas law had permitted such an adoption, the biological paternity of the child would not have become an issue.

Regan D. January 12, 2013 at 7:42 pm

Wow.
This also begs the question, why then, does the PUBLIC have to pay child support when they have NO relation to the child whatsoever by way of welfare?
In this day and age, even when it comes to this situation between these lesbians, all of these people made the adult decision to have children they obviously couldn’t financially care for were something to happen to the other parent.
When it comes to a third parent donation of eggs or sperm, especially anonymously that sets up issues that some IVF institutions should have anticipated.
Like better vetting of certain clients so you don’t get weirdos like ‘octomom’ Nadya Suleman. Now SHE is on welfare.
And they are finding too many donations from the same donor creates hundreds of sibling sets which can lead to accidental incest.
I think that nature gave us homosexuality, infertility and mortality for a very good reason.
Not everyone should be parents.
We’re not supposed to have children by the litter.
And spread so much of the seeds around like that.
And you find parental sets fighting over who is going to pay for the care of the kid and NOBODY wanting to pay for doing it.

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