JONATHAN TURLEY

In the latest controversy over the rights and liabilities of sperm donors, a gay Kansas man Daryl Hendrix is seeking to reverse a decision of the Kansas Supreme Court that denied him parental rights to children conceived with his sperm.

Hendrix lost 4-2 last fall when the court ruled that a sperm donor who wants to have parental rights with any subsequent children must have a written agreement with the mother. Yet, Hendrix insists that he had an oral agreement with Samantha Harrington, who conceived twins with sperm donated by Hendrix. The twins, a boy and a girl, will be 3 on May 18.

According to Hendrix, he was approached in 2004 by a longtime friend, Samantha Harrington, about conceiving a baby with her through artificial insemination.

“I realized that now that I’m in my upper 40s that I’m mature and responsible and financially able to support a child,” said Hendrix. So Hendrix said he agreed to the deal. “I thought everything was perfect and I said, ‘Do we need anything in writing?” he said. “She said, ‘Daryl, we’ve been friends for 10 years. I’m an attorney. Kansas is an oral agreement state. There will be no problem.’ And I took her word for it.”

Hendrix provided sperm on two separate occasions. He said the second time resulted in Harrington becoming pregnant with twins. Hendrix said, “When she found out she was pregnant, she called and said, ‘Congratulations Daddy.” The twins were born in May 2005 at Stormont Vail Hospital in Topeka. Hendrix said when he went to the hospital to see the infants, a boy and a girl, he was turned away. That’s when he learned that Kansas law gives sperm donors no parental rights unless there is a written contract.

The next day, Harrington filed legal documents asking that Hendrix have no parental rights. Hendrix too went to court. In a 4-2 opinion on Oct. 26, the court said the decision upholding the 1994 law is the first of its kind in the nation because no other state has ruled on a provision requiring a written agreement between mother and donor.

The case illustrates how confused and conflicting the law in this area has become. Unwilling fathers are routinely and appropriately forced to assume child support for their progeny. Here you have a father who wants to shoulder this burden, but is denied the responsibility and status of being a father. What is curious is that parental rights and obligations are established for a child conceived in a one-night stand with a stranger and no intent by either party to have a child. Yet, when two adults agreed to knowingly attempt to conceive a child and go through extraordinary measures to do so, the state refuses to recognize such parental status.

This runs contrary to the overwhelming public policy in all states in favor of biological parents sharing financial and legal responsibility. One would expect that the presumption would be the opposite in Kansas — a contractual waiver of rights would be needed to extinguish parental interests and obligations. This presumption should be magnified in a case where an attorney allegedly misrepresented the law and forced reliance by the other party on an oral contract. Nevertheless, parental rights have long been treated as highly fluid and unreliable. For a prior column, click here

There have been a slew of these cases raising question over parental rights over surrogates and one-night stands and embryos and non-biological fathers and other sperm donors.

For the full story, click here.