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Myra Chack Fleischer

Who's your daddy? Sperm donors, paternity, child support and the law

Thursday, January 17, 2013
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SAN DIEGO – January 17, 2013 – Can a sperm donor end up on the hook for child support? The case of Kansas sperm donor William Marotta has raised numerous questions about the potential obligations of a sperm donor who never intended to be a legal parent to a child.

In Marotta’s case, he answered a Craigslist ad placed by same sex couple Angela Bauer and Jennifer Schreiner. The trio signed a private agreement in which Marotta relinquished all his parental rights. Schreiner became pregnant and gave birth to a child who is now three years old.

Today, the couple is separated and Schreiner has become unemployed. Schreiner filed for public assistance. As is the case in many states, Kansas looks to recover some of its costs and lessen the burden on taxpayers by seeking child support. Since Schreiner and Marotta didn’t go through a doctor or an attorney, the state says Marotta is still the legal father and owes $6,000 to the state to help care for the child. The state also wants Marotta to pay ongoing child support, even though Schneider is not herself asking for any.

Science and technology progressing faster than the law

Once again in a situation that is all too common, science and societal norms continue to progress more quickly than the law. The Kansas law was written in 1994. It says the sperm donor is not the father of a child IF a doctor handles the artificial insemination. But it does not address the bio dad’s rights or obligations if it’s a do-it-yourself situation, like in this case. The state claims the agreement is not proof because there is no third party to corrobate the claim, and that it could be disguising the fact Marotta is actually Schreiner’s lover and therefore responsible for support.

Kansas legislators haven’t updated their state’s law despite a recommendation in 2002 from the National Conference of Commissioners on Uniform State Laws that states specify that a “a donor is not a parent of a child conceived by means of assisted reproduction" and that no donor could be sued to support the resulting child.” Nine states including Texas, Oklahoma, and Alabama have adopted this new language in their laws.

Could a sperm donor end up being on the hook for 18 years of child support? It's possible in states where the law doesn't protect parties involved in privately arranged donations.

Could a sperm donor owe 18 years of child support?

The truth is that Marotta, Schneider and her former partner (forgive the pun) made their bed, and they may end up lying in it. This arrangement was no doubt an effort to save money and hassle by making a private donation agreement. But it could end up being a terrible example of pay me now, or you’ll pay me later. Artificial insemination through a physician is not generally covered by health insurance. It costs between $2,000 and $3,000 per attempt. In addition, if an attorney is involved, it can cost several thousand dollars more to be sure parental rights are addressed, including a second party adoption by the partner of the mother, whether legally married or not.

Instead, couples like Schneider and Bauer put a free ad on Craigslist, and they can buy an at-home artificial insemination kit online for under $50.

Marotta’s attorney, Ben Swinnen, told the Associated Press his client cannot be declared the father of Schreinder’s daughter because of the signed agreement. He says the state of Kansas is lagging behind the trend set by the nine other states that clarify that parental status cannot be conferred on a sperm or egg donor. He believes there is also an underlying motive by the state to bolster its ban on same-sex marriage, enacted in 2005.

Although he is trying to get the case dismissed, Marotta believes the case may go all the way to the United States Supreme Court. A hearing is scheduled in April. Schneider and Bauer are backing Marotta in his fight.

Because same-sex marriage is still prohibited in many states, the presumption that the spouse of the mother is the legal parent doesn’t apply. If this prohibition is ruled unconstitutional later this year by the U.S. Supreme Court, some of these situations will be solved from a legal standpoint.

Legal, financial risks are far too high

Nevertheless, donors whether men or women need to think twice about entering into any agreement without getting the appropriate authorities involved. No private agreement can guarantee you’ll be relieved of your support obligations, which Marotta is now finding out. The biological parent and spouse or partner may also find out that it works against them if the donor decides he or she wants to exercise their parental rights after all, so it can cut both ways.

Private donations take place all the time. There are websites and message boards that specifically solicit donations. This case should make any donor think twice about engaging in a private donation arrangement. Not all states have laws that are easy to follow, and not all states offer appropriate protections to sperm donors who have no wish to retain any parental rights.

Lawyer Myra’s advice to you: there is no short cut to consulting an attorney and being guided through understanding all of the laws of the state in which one is having children, (whether you are the biological parent, donor, or partner/spouse) and then making an informed decision.

Yes, it may be costly up front to do things "right" (through an attorney and a physician, and following state law), but it can be far more expensive and emotionally damaging to get caught doing things "wrong" and then end up in a legal battle over the fate of your children.

Anyone involved in even a simple lawsuit will end up spending far more trying to fix the problem than they would have spent preventing it.

The Associated Press contributed to this story.

Myra Chack Fleischer serves as lead counsel with Fleischer & Ravreby based in Carlsbad, California with a focus on divorce, property, custody and support, settlement agreements, mediation, asset division and family law appeals. Read more Legally Speaking in the Communities at The Washington Times. Follow Fleischer & Ravreby on Facebook and on Twitter @LawyerMyra

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Copyright © 2013 by Fleischer & Ravreby, Attorneys at Law


About Fleischer & Associates, Attorneys At Law

Lead Counsel and Family Law Expert Myra Chack Fleischer has been practicing law since 1997 and in 2001 founded Fleischer & Associates, Attorneys At Law. Today, the firm focuses on divorce and other family law areas such as Divorce, Custody, Support, Division, and Agreements. Our expert attorneys have a unique mix of legal, parenting, and financial expertise for clients. In addition, the firm collaborates with therapists, investigators, and other key resources to resolve your family law situation. Fleischer has an uncommon combination of legal, accounting, parenting, and psychological skills and expertise that sets her apart as "The Family Law Expert of Choice". Myra infuses this expertise into her firm, adapting her abilities and approach to each client's situation.

Copyright © 2010 by Fleischer & Associates, Attorneys at Law

Who's your daddy? Sperm donors, paternity, child support and the law

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