BY STEVE FRY
Morris News Service
TOPEKA, Kan. | A Kansas judge has ruled that a man who donated sperm to a lesbian couple after responding to their online ad is the father of a child born to the women and must pay child support.
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 was not 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 win writing by the donor and the woman,” Mattivi wrote.
“In this case, quite simply, the parties failed to perform to 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 parential rights and responsibilities to the child,” Mattivi concluded.
Marotta contended he was only a sperm donor to a same-sex couple seeking a child, but the state of Kansas argued he is a father who owes child support to his daughter.
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.
During oral arguments, Mattivi heard from Timothy Keck, co-lead counsel for the state; Benoit Swinnen, representing Marotta; M. Jill Dykes, guardian ad litem for the child involved; and briefly from 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, a Topekan, 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.
State attorneys contended the contract was moot because those involved didn’t follow a 1994 Kansas statute, requiring a licensed physician to perform the artificial insemination when sperm donors were involved.
“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 statute reads.
During closing arguments in October, Keck said the case focused on child support. Swinnen countered by citing several court rulings he said support the argument that Marotta is legally a sperm donor and not required to pay child support.
Swinnen contested the Kansas statute, saying it doesn’t specifically direct that the artificial insemination must be carried out by a physician.
Dykes said if the court rules in the state’s favor, it must order genetic testing and consider the best interests of the child involved. She asked Mattivi to order a “best interests of the child” hearing in the case.
The state is seeking to have Marotta declared the child’s father so he can be held 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.
The agency also says it received different versions of the donor contract from Marotta and Schreiner. One copy doesn’t include dates or Schreiner’s signature, suggesting the contract “may be invalid on its face,” the filing says.
Benoit Swinnen, one of Marotta’s attorneys, said Thursday he disputes the agency’s claims.
“We stand by that contract,” Swinnen said. “The insinuation is offensive, and we are responding vigorously to that. We stand by our story. There was no personal relationship whatsoever between my client and the mother, or the partner of the mother, or the child. Anything the state insinuates is vilifying my client, and I will address it.”
The DCF argued the sperm donor contract overlooks “the well-established law in this state that a person cannot contract away his or her obligations to support their child.” The right for support belongs to the child, the state argued, not the parents.
Additionally, the state said, protection from a paternity determination is available only when the semen is provided to a licensed physician. In documents included with the filing, Schreiner wrote Marotta “donated sperm 3 times” and she “used a syringe to inseminate.”
The document says they “never had ‘actual sex.’ ”
On an application for child support dated Jan. 5, 2012, Schreiner entered question marks for the father’s name. Where the application asks, “Who do you think is the father and why,” she wrote, “no idea — sperm donor.”