Continuing Obligations of Sperm Donors
The distinction, therefore, rests with whether the relationship between the donor and the parent could be classified as "clinical," comparable to an anonymous donor, where the "conception" takes place in a medical facility, rather than a bedroom, but for the fact that the parties know each other. That distinction has been codified in the 1973 Uniform Parentage Act, adopted in full in 19 states, including California, but not Pennsylvania, and in part in other states. Section 702 of the act provides that a "donor is not a parent of a child conceived by means of assisted reproduction" and the comment to that section notes that "the donor can neither sue to establish parental rights, nor be sued and required to support the resulting child. In sum, donors are eliminated from the parental equation."
Language similar to the Uniform Parentage Act has been cited in a recent Kansas child-support case that has gained national attention. William Marotta donated sperm to a same-sex couple in response to an advertisement placed by the couple on craigslist.com. Marotta and the couple signed a contract indicating that Marotta would not assume parental obligations. The couple, now separated and facing financial difficulties, have sued Marotta for child support for the 4-year-old child and Kansas is taking legal action on behalf of the couple. Kansas law provides that the presumption of paternity, and attendant obligations, is not applicable if the man is "the donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor's wife," per Kan. Stat. Ann. §23-2208(a)(5). The couple argued that as the sperm insemination was not performed by a licensed physician, the contract is void. Marotta is arguing that the statute is antiquated. On Jan. 22, the U.S. District Court for the District of Kansas ruled that the sperm donor must pay child support due to the parties' failure to utilize a licensed physician for the insemination.
The ever-changing technological landscape of procreation together with the increased number of same-sex couples entering into formal marriages is likely to result in an increased use of alternative methods for conceiving children. As statutes applicable to heterosexual couples are applied to couples who have utilized third parties to procreate, it is essential to understand the rights and obligations each party might have and how to waive such rights (if possible). The statutes in certain states may provide specific guidance in future years, but until then, the best approach may be to ensure, on paper and otherwise, that any party involved in conceiving a child who is not intended to be a parent to that child is treated as if he or she is an anonymous donor.
Scott J.G. Finger is an associate in the domestic relations firm Hofstein Weiner & Meyer.