By Mark Esposito, Weekend Contributor
William Marotta is proving Groucho Marx right. “It isn’t necessary to have relatives in Kansas City* in order to be unhappy, ” Marx quipped in a letter. The classic comedienne may have just been on to something as Marotta has been ordered by a Kansas court to pay support for a child he fathered in Topeka as part of a private artificial insemination contract.
Even though Marotta signed the contract waiving any legal rights to the child, Shawnee County District Court Judge Mary Mattivi said he must still pay support because the artificial insemination was performed without the involvement of a licensed Kansas physician. The story began– as so many strange ones do –with an ad on Craig’s List in March 2009 seeking donated sperm. (Wonder if it was in the “free” section?). The authors of the ad were a lesbian couple in Topeka who desperately wanted a child and needed a donor of genetic material.
Like any other red-blooded male to whom this request might fall, Marotta immediately whipped up three cupfuls of the fertile liquid and sent it, post-haste, to the childless couple free of charge along with a signed contract relieving him of any further responsibility — or so he thought. A daughter was born to the couple in December and all involved thought the matter was closed. “I donated genetic material, and that was it for me,” Marotta told CNN.
That wasn’t “it” for the Kansas Department for Children and Families (DCF), however, who claimed the documents severing his relationship with the child were invalid because a licensed physician was not involved in the insemination of the mother. The DCF then began a process to petition the court for child support when the lesbian couple separated and one of the parents began receiving welfare benefits due to a disability. The incentive to declare Marotta the child’s father was to hold him responsible for about $6,000 in public assistance that the state had already provided, as well as getting him on the hook for future child support. As for Marotta, he had no idea a physician didn’t handle the procedure since this was merely a “sow and send” mission for this good Samaritan.
Judge Mattivi ruled that the child, now age 4, was entitled to support since the insemination process skipped the doctor and thus did not meet the exemption from fatherhood found in Kansas law. The involvement of the physician was necessary to insure that Marotta was a sperm donor and not the lover of the mother of the child. “In this case, quite simply, the parties failed to perform to statutory requirement 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 parental right and responsibilities to the child,’’ Mattivi wrote.
Marotta’s lawyer, Ben Swinnen, is not buying this rationale in a state where same-sex marriage is illegal. “The cost to the state to bring this case far outweighs any benefit the state would get,” said Swinnen. Swinnen also argued that the Kansas statute doesn’t specifically require the artificial insemination to be carried out by a physician.
That last argument might see a little rough sledding at the appellate level. Here’s the pertinent text of the Kansas law:
SECTION 23-208. Presumption of paternity. (a) A man is presumed to be the father of a child
(1) The man and the child’s mother are, or have been, married to each other and the child
is born during the marriage or within 300 days after the marriage is terminated by death or by
the filing of a journal entry of a decree of annulment or divorce.
(2) Before the child’s birth, the man and the child’s mother have attempted to marry each
other by a marriage solemnized in apparent compliance with law, although the attempted
marriage is void or voidable and:
(A) If the attempted marriage is voidable, the child is born during the attempted marriage or
within 300 days after its termination by death or by the filing of a journal entry of a decree of
annulment or divorce; or
(B) if the attempted marriage is void, the child is born within 300 days after the termination
(3) After the child’s birth, the man and the child’s mother have married, or attempted to
marry, each other by a marriage solemnized in apparent compliance with law, although the
attempted marriage is void or voidable and:
(A) The man has acknowledged paternity of the child in writing;
(B) with the man’s consent, the man is named as the child’s father on the child’s birth
certificate; or Rev. 11/09 8
(C) the man is obligated to support the child under a written voluntary promise or by a court
(4) The man notoriously or in writing recognizes paternity of the child, including but not
limited to a voluntary acknowledgment made in accordance with K.S.A. 38-1130 or 65-2409a,
and amendments thereto.
(5) Genetic test results indicate a probability of 97% or greater that the man is the father of
(6) The man has a duty to support the child under an order of support regardless of
whether the man has ever been married to the child’s mother.
(b) A presumption under this section may be rebutted only by clear and convincing
evidence, by a court decree establishing paternity of the child by another man or as provided in
subsection (c). If a presumption is rebutted, the party alleging the existence of a father and child
relationship shall have the burden of going forward with the evidence.
(c) If two or more presumptions under this section arise which conflict with each other, the
presumption which on the facts is founded on the weightier considerations of policy and logic,
including the best interests of the child, shall control.
(d) Full faith and credit shall be given to a determination of paternity made by any other
state or jurisdiction, whether the determination is established by judicial or administrative
process or by voluntary acknowledgment. As used in this section, “full faith and credit” means
that the determination of paternity shall have the same conclusive effect and obligatory force in
this state as it has in the state or jurisdiction where made.
(e) If a presumption arises under this section, the presumption shall be sufficient basis for
entry of an order requiring the man to support the child without further paternity proceedings.
(f) 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.
Swinnen is correct that subsection (f) provides only that the semen be “provided to a licensed physician for use in artificial insemination” and not that the physician actually perform the task. The law may not be a shining example of the best legal draftsmanship around, but relegating the physician to mere postmaster status? Well, let’s just say it’s not a position an appellate court is likely to take when charged with divining legislative intent.
Marotta is not taking this ruling lying down. He’s going to the public with his plight in spite of the near universal rule that child support is a legal right of the child which the parents cannot contract away. “If enough noise gets made about it, at this point, maybe things will change for the better,” he said.
So what say you? Is Marotta a wounded innocent bystander in the culture wars over reproductive rights or is he a dead-beat– though unconventional– dad looking for a break from his duty?
The comments (and the poll results) should make interesting reading.
*Ok, I know Groucho was probably talking about the big city in Missouri but it fit the story line so well. By the way, the rest of the letter is a riot too. Read it here.
~Mark Esposito, Weekend Contributor