Well, You’re Back In Kansas Now: Sperm Donor Ordered To Pay Child Support

By Mark Esposito, Weekend Contributor

The Eager To Oblige William Marotta Must Be Wondering If It’s Oz or Kansas

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
of cohabitation.
(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
the child.
(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.

Source: CNN

*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

26 thoughts on “Well, You’re Back In Kansas Now: Sperm Donor Ordered To Pay Child Support”

  1. bettykath, They could call it the Turkey Baster provision. We have lesbian friends who love turkey baster jokes.

  2. Mr.ed,

    That seems to be the case…. Then you have real security….. Almost impossible to track the donors down without a court order…..

  3. If the sperm was donated anonymously and implanted or fertilized an embryo in a lab, would the donor be off the hook in Kansas? I’m shooting blanks since my vasectomy, so the subject is academic to me.

  4. Seems to me the responsible party for child support is the lesbian partner who also contracted for the child as the second parent.

  5. Having friends, BUT NO FAMILY in Kansas, I have followed this story. As the attorneys have noted, the decision is flawed. Here’s what this lesbian couple have accomplished. They have made it MUCH less likely that a man will ever do the generous act of Mr. Marotta again. If the LGBT activist groups were smart, they would condemn this decision and support Mr. Marotta. But of course, that isn’t going to happen!

  6. If I recall there was a thread on here years back where if I recall a nurse tricked a Dr into oral sex with a condum….. She then used the proceeds to impregnate herself….. And then sued for support….. If I recall…. He was ordered to pay support….

  7. As someone that practiced family law for a number of years and knowledgable of the Unified Support Acts…. Across states lines have very little variance…. The only issue I see…. If a Dr did not implant the sperm…. He’s on the hook for support….. Now… One thing that can not be waived unless under extraordinary circumstances is child support….. I’d say he has a few equitable remedies under at his disposal….. One, Detrimental Reliance, two, unclean hands, three breach of contract, four, a third party claim against the other party…..

    Then there is failure of consideration and a whole slew od othe affirmative defenses…..

  8. Wishing doesn’t make it so. A person cannot contract away his duty to support a child he brought into the world especially where the state which is seeking reimbursement for welfare payments was not a party to the contract. You make a baby, you are responsible for the baby. Better him than the taxpayer.

    I would go further and make the fertility clinic responsible for the babies they brought into the world whose parents are incapable of supporting them. The clinics make a huge amount of money off artificial insemination. Let them pay the price of their actions, rather than the rest of us. Babies are brought into this world by the fertility clinics, the parent(s) cannot support the kids, and the taxpayer is on the hook. This is wrong on several levels.

    Octomom is only an extreme example. There are lots of artificially inseminated babies in this world being supported by the taxpayer. Place the responsibility on the responsible parties: the fathers and the fertility clinics.

    Good for the judge.

  9. The question none of us has thus far addressed is what proof do we have that Sperm Guy is the real owner/donor of the sperm that impregnated the mom? Was there a legitimate dna test of Sperm Guy and the kid? It is truly in the interests of the kid here to know his/her true father. We cannot rely on the testimony of the nitwit mother or nitwit female walk off the job substitute father.

    The State should make all parties reimburse the State for the money the state has spent, and will spend, on raising the kid. Why should the rest of us taxpayers pay for the acts of this jerkoff and mom wannabe? The mom needs to be put on a chain gang doing so good honest labor for the State of Kansas.

    Judge Dorothy Toto said in a phone interview that she is fed up with these wannabees.

  10. For the sake of this argument lets just call the Moratta guy: “Sperm Guy”.The State has undertaken some things that all states in these United States do. It recognizes marriage between man and wife. It recognizes genetic parentage of children, whether married or not. It obligates a parent to provide for the needs of a minor child until age 18 or longer. It provides state assistance for the provision of needs of a minor child when parents fail in that obligation to provide support. It legislates a remedy for the State to be reimbursed for provision of such child support.

    In the instant case there is no other Father of this minor child than “sperm guy”.

    No other male or female has adopted this child.

    Two humanoids are on the table so to speak, Mother and Sperm Guy natural father.

    The only thing that Sperm Guy did not do here was pork the Mother to implant the sperm.

    The question before the Court is whether a Non Porking Sperm Guy is the natural father of this child and hence, ipso facto and res ipsa locator he is obligated to pay the state reimbursement money for his failure to support his child.

    Boiling it down. Is the human child an offspring of Sperm Guy? Since there was no bed involved we can go right by the quickie on a bedspring sort of explanation of unintended consequence. Did Sperm Guy intend for his sperm to meet up with the egg of Mother? Yes. He admits that. Did it? Yes. He and Mother admit that. No DNA test is required. If it were provided it would further add to the finding.

    Who else is there?

    Does “Long Gone Girlfriend of Mother” also owe an obligation of reimbursement to the state for their provision of support? Answer: Yes, because she agreed in writing to be female daddy in a child support role.
    Does that finding and judgment let Sperm Guy off the hook? No.

    Judgment For The Great State of Kansas. The defense of I didn’t pork her is not recognized in this state when there is proof of genetic parentage. The means of insertion has never been an issue in this State. The thing that speaks for itself here is the sperm and not the Thing. The method of insertion is irrelevant. One can plant the normal way or implant in other ways. The Court will not shake hands with any of the parties due to the aforesaid facts. Dog only knows…..

    -So Ordered, this 25th day of January, 2014 by

    The Honorable Judge Toto, Presiding.

    The next case on the docket is styled: Its Not Fried Chicken Daddy, Its Shake In Bake.

  11. Interesting law. Unless there is more, a rapist can claim paternity and go for custody.

  12. the funny part is they are trying to kick people off welfare but not provide jobs either… so what exactly do they expect the people to do? keep paying taxes to pay for the uber lavish lifestyles of the itch and shameless?

    he should never have sent his semen to unknowns for one..

    unbelievable the crap people do today

  13. pete:

    Marriott’s not taking this lying down because he didn’t give it lying down either. I read the decision, which Mark quite accurately described. No Rhodes scholars in this bunch. They apparently picked up some form from Office Depot or Staples and did their own contract. Fertilization on the cheap. I can’t quite discern the public policy underlying the statute, but no one can claim that the judge is not a strict constructionist.

  14. i’m guessing it all depends on the method of insemination. did the donor place the sperm in the uterus himself, aka “the old fashioned way” or was a device, aka “a turkey baster” used.

    i leave any other methods to the imagination of the individual.

  15. Another example of the state doing everything it can to wrench money out of someone who did nothing wrong so the state doesn’t have to pay anything. (but as the attorney implied, I sadly and easily see the state paying 100 grand in court to enforce this)

    In other news, sales of turkey basters plummet

  16. What idiot sends his sperm to someone he doesn’t know in response to a Craiglist’s ad? I almost feel like he should be paying child support based on stupidity.

  17. This law is a stupid attempt to kick people off of welfare. Especially if these persons are gay or lesbians. I have seen other cases that hinge on the private donor contract directly between the donor and the donee, as opposed to obtaing the sperm through a sperm bank. I think these distinctions are there only in an attempt to defeat the artificial insemination process itself.

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