Kansas court hears landmark sperm donor case

Via Grant Griffiths Kansas Family and Divorce Lawyer Blog, news comes of a potentially landmark case that was heard recently by the Kansas Supreme Court in which a sprem donor is challenging a provision of Kansas law that provides that donors do not have parentla rights unless that understanding has been reduced to writing. This is a development that all practitioners should watch with interest. With Grant’s blessing, I have reduced his post on this topic in its entirety below the fold.

A sperm-donor’s rights case will be addressed this week in the Kansas Supreme Court. A Kansas man who donated sperm to his friend wants to help raise the offspring. He’s challenging a state law that says donors have no parental rights.

The suit, set for arguments concerns a Shawnee County man who donated sperm to a friend. The woman underwent artificial insemination and delivered twins in May 2005. The man argues that he always intended to act as a father to the children. No agreement was put into writing, however, and a judge later decided the man had no rights as a father.

That’s because Kansas law denies parental rights to sperm donors unless they have a written agreement with the mother specifying that they will act as father. The 1994 law was designed to protect children conceived through artificial insemination from frivolous custody disputes, as well as to safeguard donors from child support lawsuits.

The unmarried woman, who, like the donor, is identified only by initials in court documents, argues that she never intended to share parenting with the man. She chose the man, whom she had known for 10 years, because of his good medical history.

The man appealed his case to the high court, arguing that the law is unconstitutional. His attorney said a better law would require donors to sign an agreement waiving their rights as parents.

Linda Henry Elrod, a family law professor at Washburn University, filed a legal brief in which she sided with the donor. Elrod argues that to require a man to have a written agreement before he has parental rights over his biological children is to violate his constitutional rights. The law, she wrote, “cannot take away a constitutional right to be a parent” without due process. Elrod was my family law professor in law school. However, I have to disagree with her on this one. And it would appear others do too.

21 other family law experts across the country filed a brief supporting the woman. They argued that the Kansas law in effect protects the interests of children created through sperm donation, as well as the mothers and the donors, by requiring any agreements to be set down in writing.

One of those professors, Nancy Polikoff, a family law professor at American University, said “biology is not enough” to give the man parental rights. The law assumes the mother (and any husband or partner she might have) will have custody when it comes to children of sperm donors. Without the Kansas law, she said, women could face custody battles from donors, or donors could find themselves being asked to support a child they never intended to know.

I will keep you all posted on the outcome of the case before our Kansas Supreme Court when the decision comes down.

Source: Kansas Family and Divorce Lawyer Blog