NPR Story
5:25 pm
Wed February 12, 2014

Court To Sperm Donor: You Owe Child Support

A little more than four years ago, William Marotta saw an ad on Craigslist — a lesbian couple, Angela Bauer and Jennifer Schreiner, was looking for a sperm donor so that they could conceive.

Marotta answered the ad and all parties signed a contract the couple had downloaded, aimed at relieving Marotta of any parental responsibilities. Several months later, Schreiner gave birth to a little girl.

About a year later, the couple split up. When Bauer suddenly could not work, Schreiner then applied to the state for “food, cash and medical assistance.” On her application she noted that the father of her daughter was a donor.

The state then contacted Marotta and told him he owed $6,000 for child support the state had provided. The amount has since been lowered to $4,000. Marotta and his lawyer Ben Swinnen have decided to appeal.

“Just because the law’s on the books doesn’t mean it’s right,” Marotta told Here & Now’s Robin Young. “Some laws are outdated, outmoded. They didn’t keep up with the times.”

Swinnen says Bauer wanted to support her ex-wife and their baby.

“Angela did make several attempts at contacting the state, and the state simply refused to talk to her,” Swinnen said. “The state also objected to her intervening in the case.”

District Court Judge Mary Mattivi, who ruled on the case, wrote:

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.” … This court finds that, because the parties did not provide the donor sperm to a licensed physician, the statutory basis for preclusion of paternity does not apply, and the donor therefore can be determined to be the father of the child.

The Kansas Department for Children and Families declined to comment or speak with Here & Now because the litigation is ongoing, but DCF Secretary Phyllis Gilmore issued a statement saying, “We appreciate the judge’s careful consideration and attention to the law. The Kansas Department for Children and Families has maintained that K.S.A 23-2208(f) makes clear that individuals must go through a licensed physician in order to avoid the financial responsibilities associated with parenthood. The court and law support this position.”

Guests

  • William Marotta, sperm donor who is being sued for child support.
  • Ben Swinnen, lawyer in Topeka, Kansas, representing William Marotta.
Copyright 2014 WBUR-FM. To see more, visit http://www.wbur.org.

Transcript

ROBIN YOUNG, HOST:

It's HERE AND NOW.

A judge in Kansas has ruled that a man who signed a contract to be a sperm donor for a lesbian couple must now pay child support for their child because they didn't use a doctor.

Let's back up. William Marotta responded to an ad on Craigslist from Angela Bauer and her partner, Jennifer Schreiner. He and the two women signed a contract they downloaded from the Internet, relieving Marotta of any parental responsibilities. And a few months later, Jennifer gave birth to a little girl.

Then Jennifer and Angela split up but were still co-parenting. Then Angela became ill and couldn't work. So Jennifer applied to the state for assistance, which she got. But the state then went after Will Marotta, the donor, ultimately for $4,000 in child support. And a court in Kansas upheld that move because state law requires that a doctor be involved in artificial insemination, and one hadn't been.

Well, the case is now heading toward an appeal, and it's raising all sorts of questions, including are state laws that exempt sperm donors from child support if the couple uses a doctor discriminating against lesbian couples who are more likely to do the insemination without a doctor? Will Marotta joins us from the studios of WIBW in Topeka, Kansas. Welcome.

WILLIAM MAROTTA: Hello.

YOUNG: And we're also joined by your lawyer who's sitting there with you, Ben Swinnen. Hello to you as well, Ben.

BEN SWINNEN: Hello.

YOUNG: So District Court Judge Mary Mattivi who ruled on this case said that the law is very clear, that a donor of semen provided to a licensed physician for use in artificial insemination cannot be treated as the birth father of a child unless there is some agreement with the sperm donor. But the law does not apply to children conceived without a licensed physician involved. So, Will, perhaps you didn't know about this law, but ignorance of the law is no defense. Isn't she right that the law is clear?

MAROTTA: It may be clear to some people, but I would have to disagree with it. Some laws are outdated, outmoded. They didn't keep up with the times. For example, let's go back to the civil rights movement, some of the Jim Crow laws in the South. They were deemed, at one point, not to be legal, and then one - after being legal for God knows how many years. Just because the law is in the books, doesn't mean it's right.

YOUNG: Well, we've reported on this in the past. In fact, I remember years ago - and this, by the way, is a portion of this reporting that may not be for sensitive ears or children's ears. But I remember reporting on a lesbian couple that used a friend and turkey baster, and they did the process themselves. A doctor and the cost of the doctor was not needed. I'm gathering in this case, although you're not privy to what they did, you all felt you didn't need a doctor.

MAROTTA: I had no knowledge of whether or not they were using a doctor or not.

YOUNG: Yeah, you just did your part.

MAROTTA: Correct. Literally, I delivered a little plastic cup in a brown paper sack to the front door.

YOUNG: And that was that. By the way, why did you do this? You weren't paid.

MAROTTA: No. In a way, it kind of struck a chord with me and my wife. We've been part of foster parenting, and there's certain things that we feel that we support. And after interviewing them as much as they interviewed my wife and I, we felt like there was no reason why not to.

YOUNG: Yeah. Well, and again, did not know that a law might be a tripwire that would make you responsible for this child even though you'd signed a contract. And by the way, the two women, Angela and Jennifer, split up. Jennifer was the birth mother. Angela did want to support the child, couldn't because she was unable to work. But even when beyond that - you tell us even when beyond that she wanted to support the child the state rejected that?

MAROTTA: That's my understanding from things that I've read in the deposition and from other people that are more privy to the conversation that Angie has had with the state of Kansas.

YOUNG: Let's bring in Ben Swinnen, your attorney. Ben, what do you think is going on here?

SWINNEN: Well, I'd first like to address your statement that the law is clear. The only thing that's clear in that law is that if, indeed, there is a doctor involved, the donor is not the father. What the state is implying or what the judge is implying is that conversely, if no doctor is involved, then the donor must be the father. That part is not in the law. That part is read into the law by the court and by the state. And I disagree with that. So there is no such thing as clarity in the law in my opinion.

As far refusal of the state, the state - Angela did make an attempt - several attempts at contacting the state, and the state just simply refused to talk to her. The state also objected to her intervening in the case.

YOUNG: Well, and there are those, including The Boston Globe editorial board who recently wrote an editorial about this, who feel that there is something more going on here, that this is a state that has a constitutional amendment outlawing same-sex marriage and that this is another way of enforcing that if you don't acknowledge a couple that has a child.

SWINNEN: Oh, I agree, there is a political agenda.

YOUNG: Well, we asked the Kansas Department for Children and Families to speak with us or to comment. They declined because, as they said, the litigation is ongoing. Prior to that, state Secretary Phyllis Gilmore issued a statement saying, we appreciate the judge's careful consideration and attention to the law, as we just described it.

Do you think this is chilling for people like yourself who are willing to help out other couples and forgo the huge payment and other things that are entailed with a doctor?

MAROTTA: Oh, absolutely. I've had emails and comments from - items posted on Internet news networks where people say, you know, this may have been something that they would have considered at one time, but they would definitely not consider doing it now in light of the mess that I'm in.

YOUNG: Well, the laws vary from state to state. In California, actually, a man used the same kind of law to try to be involved in the child's upbringing, to try to claim that he was the father. And the California court in 1986 ruled that he was, again, because the parties did not use a licensed physician in the artificial insemination process. But is there a precedent - had there been cases where states have found that sperm donors are not considered fathers?

SWINNEN: Yes, there have been cases. I believe it was Wisconsin. The other one is in New Mexico. It's the men's case, as we have cited at length. So there are precedents in the other direction.

YOUNG: That's Ben Swinnen, lawyer for William Marotta, who's been ordered to reimburse state child support made to a lesbian couple that he helped conceive a child when he was a sperm donor. Will, Ben, thanks so much for talking to us.

SWINNEN: You are very welcome.

MAROTTA: Thank you very much.

YOUNG: And we love your thoughts on this story. And a news note that we have: A federal judge has ruled that the state of Kentucky must recognize same-sex marriages performed in other states. The ruling strikes down part of a ban on same-sex marriage that Kentucky voters approved in 2004. The judge concluding that Kentucky law treated gays and lesbians differently in a way that demeans them.

You're listening to HERE AND NOW. Transcript provided by NPR, Copyright NPR.

Related program: