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Assumption of parentage
January 2, 2013 4:46 PM   Subscribe

In 2009, William Marotta, donated his sperm to a lesbian couple. Although they did not go through a licensed physician, per Kansas state law, the three signed an agreement relieving Marotta of any financial or paternal responsibility. The women, who co-parent 8 children, broke up in 2010, and the state of Kansas is now attempting to get Marotta to pay child support.

Late last year, after Jennifer Schreiner and Angela Bauer broke up, Schreiner received public assistance from the state to help care for the girl.

The Kansas Department for Children and Families filed a court petition against Marotta in October, asking that he be required to reimburse the state for the benefits and make future child support payments. Marotta is asking that the case be dismissed, arguing that he's not legally the child's father, only a sperm donor.

Kansas' Constitution bans same sex marriage.
posted by roomthreeseventeen (232 comments total) 10 users marked this as a favorite

 
So ... didn't use a lawyer and apparently didn't even read up on paternity law.
posted by Tell Me No Lies at 4:49 PM on January 2, 2013 [6 favorites]


That is very much not right.
posted by mudpuppie at 4:49 PM on January 2, 2013 [8 favorites]


What's dumb about existing law is that a doctor, wielding a needleless syringe with donor sperm, removes the state's interest in paternity, while the couple, doing the same thing with a syringe, even with the signatures of every adult involved, does not.

It imbues magical powers on the doctor's syringe, as far as I can tell. And for no real benefit other than allowing some yahoo state to extract a pound of flesh from someone who is very much not the parent.
posted by zippy at 4:56 PM on January 2, 2013 [59 favorites]


Pretty fascinating.

Seems like the law has it both ways, in the book 'Sperm Wars' by Robin Baker, he details how paternity laws have also forced the legal husband to pay child support even in cases where the child wasn't genetically their offspring.
posted by hobo gitano de queretaro at 4:56 PM on January 2, 2013 [8 favorites]


Octomoms.
posted by b1tr0t at 4:56 PM on January 2, 2013 [4 favorites]


I love this part from the first link:

Bauer and Schreiner have said they fully support Marotta’s efforts to fight the state’s request. When Bauer was diagnosed in March with what she calls “a significant illness” that prevents her from working, Schreiner sought health insurance for their daughter from the state. The DCF told Schreiner if she didn’t provide the sperm donor’s name, it would deny any health benefits because she was withholding information.
posted by roomthreeseventeen at 4:57 PM on January 2, 2013 [34 favorites]


You can't generally make an agreement that goes against the law of the state in which the agreement was made. And according to the second link, at least, the law in Kansas is unambiguous: sperm donors are fathers unless the insemination is performed by a doctor.

This is why you should hire a lawyer when you're trying to do legal stuff.
posted by mr_roboto at 4:58 PM on January 2, 2013 [42 favorites]


Sheesh, and I think MY LIFE is complicated. Ha.
posted by Skygazer at 5:00 PM on January 2, 2013 [2 favorites]


"The law is a ass." -- Charles Dickens
posted by CheeseDigestsAll at 5:00 PM on January 2, 2013 [4 favorites]


It imbues magical powers on the doctor's syringe, as far as I can tell. And for no real benefit other than allowing some yahoo state to extract a pound of flesh from someone who is very much not the parent.

This describes everything a doctor does. And a lawyer. And a notary public. And, in some states, a hairdresser. Yes, this is how professional certifications work. Yes, they're a quirky blend of a scam and a incredibly good idea.
posted by GuyZero at 5:01 PM on January 2, 2013 [42 favorites]


Seems easily fixable by paying the child support and having them parents give them money back to him.
posted by josher71 at 5:03 PM on January 2, 2013 [6 favorites]


If you're too foolish or arrogant to read the relevant laws, or you were too broke to get a doctor or lawyer involved, you had no business trying to set up a multi-decade legal agreement involving a child anyway.
posted by jacalata at 5:04 PM on January 2, 2013 [11 favorites]


Angela Bauer? Working hard to resist the urge to make a Who's The Boss joke.
posted by dry white toast at 5:04 PM on January 2, 2013 [6 favorites]


Seems easily fixable by paying the child support and having them parents give them money back to him.

Well not exactly. It sounds like the mother needs the income - she's arguing to be eligible for state benefits, the state is saying that she needs to get money from the 'dad' first. So if he pays her the money and she gives it back, she's got nothing to live on (specifically, to buy health insurance for the kid from).
posted by jacalata at 5:05 PM on January 2, 2013 [3 favorites]


josher71, the state of Kansas is asking the man to reimburse the state, not the parents.
posted by roomthreeseventeen at 5:05 PM on January 2, 2013 [10 favorites]


So, if a heterosexual couple did the same thing (got sperm, didn't see a doctor, got divorced), would the state not go after the ex-husband? I suppose there would be a presumption of biological paternity there?
posted by jeather at 5:05 PM on January 2, 2013 [1 favorite]


Yes, the law in its majesty protects both heterosexual and same sex couples equally from donor sperm.
posted by zippy at 5:13 PM on January 2, 2013 [5 favorites]


jeather, that's a good question, and I don't quite know the answer.

Statute 38-1114: Presumption of paternity. (a) A man is presumed to be the father of a child if:
(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.

So, in this case, I'd think the state would go after the ex-husband before the sperm donor, simply because mom and dad were married.
posted by roomthreeseventeen at 5:16 PM on January 2, 2013


Yes, the law in its majesty protects both heterosexual and same sex couples equally from donor sperm.

The purpose of the law is actually to protect the children not the parents, biological or otherwise.
posted by alms at 5:17 PM on January 2, 2013 [17 favorites]


This is the kind of stuff that makes men's rights types furious but I honestly don't think you shoild be able sign away your responsibility for a child. He signed an agreement with two women, not the child, who now needs to be supported.
posted by Ad hominem at 5:19 PM on January 2, 2013 [3 favorites]


The purpose of the law is actually to protect the children

This might sound snarky, but a lot of laws based upon codified discrimination often do it for the children.
posted by Blazecock Pileon at 5:20 PM on January 2, 2013 [9 favorites]


The law in it's majesty says when a man and a woman make a baby, they are both responsible for paying for its upkeep, unless they go through a specific, well outlined procedure to bring in a third, registered, adult who will replace the man as the designated financially responsible partner. And it says that even if you're gay, you don't get to just say 'oh hey tom and i totes said he's like not ever gonna have to pay for this, it's cool', you have to go through said well outlined procedure. If that's too hard, wait til you hear about actually being a parent!
posted by jacalata at 5:22 PM on January 2, 2013 [19 favorites]


I've never understood what the incentive for sperm donation is? An orgasm?
posted by Xurando at 5:23 PM on January 2, 2013 [2 favorites]


So, in this case, I'd think the state would go after the ex-husband before the sperm donor, simply because mom and dad were married.

Hmm. I wonder if the ex-husband could then go to the state and say he is not the biological father and thus shouldn't be on the hook for support and have any legal backing for that stance.
posted by jeather at 5:23 PM on January 2, 2013


This is the kind of stuff that makes men's rights types furious but I honestly don't think you shoild be able sign away your responsibility for a child. He signed an agreement with two women, not the child, who now needs to be supported.

I strongly disagree. This isn't a guy who has a baby because he had unprotected sex and is now trying to abdicate responsibility. This is a guy who graciously donated his sperm because he wanted to help a couple out, and only did so with the understanding that he didn't have responsibility.

Yes, the child should be supported. The support should come from the parents--the two moms--and if they can't afford it, the state. We shouldn't live in a society where the state punishes donors because it can't be arsed to help out a poor family.


I've never understood what the incentive for sperm donation is? An orgasm?

Generosity? Good-will? Sympathy for a gay couple that may face resistance from the medical establishment because of their sexuality? They don't say whether he was paid or not--that could've been a factor.
posted by schroedinger at 5:24 PM on January 2, 2013 [77 favorites]


I am a sperm donor under a similar setup (no doctor involved) to the man in the case posted, but in British Columbia.

I did get legal advice. There was nothing mentioned to me about the effect of not using a doctor and I doubt that it's an issue here. The Kansas law is messed up.

But Alms is correct to say that the law is designed to protect the kids, not the donors. Although my legal setup seemed pretty solid there are never any guarantees as to what might happen in family court.

My girls are nine, and I see them pretty regularly. I've had no legal troubles and will never regret doing it.
posted by bowline at 5:24 PM on January 2, 2013 [8 favorites]


I've never understood what the incentive for sperm donation is? An orgasm?

Sure. Beats blood donation any day of the week.
posted by axiom at 5:26 PM on January 2, 2013 [1 favorite]


This is messed up, but they should have used a lawyer because you can't always see down the road when you agree something.
posted by arcticseal at 5:26 PM on January 2, 2013 [1 favorite]


This is the kind of stuff that makes men's rights types furious but I honestly don't think you shoild be able sign away your responsibility for a child. He signed an agreement with two women, not the child, who now needs to be supported.

I strongly disagree also. What about adoption? If a young couple has a kid, signs away their rights to the kids and gives the child up for adoption --- should the couple be responsible for child support should the adopting parents divorce?
posted by suedehead at 5:28 PM on January 2, 2013 [11 favorites]


Yeah, kind of just seems like a big "Whoops!" on their part. Still a sucky situation to be in, though.

I hope that he is a good enough person to not feel resentment over this situation.
posted by josher71 at 5:29 PM on January 2, 2013 [1 favorite]


Hmm. I wonder if the ex-husband could then go to the state and say he is not the biological father and thus shouldn't be on the hook for support and have any legal backing for that stance.

This is why there are paternity tests I think. I have a suspicion that a case like the one you describe probably goes up in from of some US court every day of the week.
posted by GuyZero at 5:29 PM on January 2, 2013


If a young couple has a kid, signs away their rights to the kids and gives the child up for adoption --- should the couple be responsible for child support should the adopting parents divorce?

If they did not follow the clearly outlines legal rules for adoptions in the state in question, yes.

This entire case is about this couple not bothering to follow the rules and involve a doctor for some nominal fee.
posted by GuyZero at 5:31 PM on January 2, 2013 [7 favorites]


This entire case is about this couple not bothering to follow the rules and involve a doctor for some nominal fee.

Actually in our case my understanding is the fee to have the donations done with a doctor around would have been very significant. Keep in mind too that you generally will not be successful the first time out.
posted by bowline at 5:36 PM on January 2, 2013 [5 favorites]


Actually in our case my understanding is the fee to have the donations done with a doctor around would have been very significant.

Certainly not significant compared to the cost of raising a child?
posted by mr_roboto at 5:37 PM on January 2, 2013


I've never understood what the incentive for sperm donation is? An orgasm?

No, male donors can likely achieve orgasm more easily without the pressure of a call from a couple where the birth-mom-to-be is ovulating right now and can they come over in fifteen minutes to collect the jar?

You do it because you want to be kind and you want to help your dearest friends to create a new life. You do it because they tried the clinic for months and had no success, because the clinic is stressful and the timing there may be suboptimal. You do it out of love. You do it for a lot of reasons. But the orgasm is not one.
posted by zippy at 5:37 PM on January 2, 2013 [10 favorites]


This isn't a guy who has a baby because he had unprotected sex and is now trying to abdicate responsibility. This is a guy who graciously donated his sperm because he wanted to help a couple out, and only did so with the understanding that he didn't have responsibility.

Mmmmm. But how should the law make that distinction? In this case, he's got his not-exactly-legal contract, and he's got the moms on his side. What happens when there's a dispute between those parties as to the nature of the agreement? Or what's to prevent the biological father and the mother from lying about their relationship in order for the mom to get welfare if the father doesn't want to pay for the kid, or in order to get extra help?

I feel like this is one of those cases where I completely feel for the guy on the individual facts. But as a matter of law I think there's no real way around the matter other than to designate a procedure which says, "if you want to make yourself an unusual exception from the basic existing common laws, you have to do x, y, and z, and if you don't, you ain't."
posted by Diablevert at 5:38 PM on January 2, 2013 [11 favorites]


and only did so with the understanding that he didn't have responsibility.

I see your point, the only reason this kid exists is due to that agreement. I still think he bears some responsibility, he never made an agreement with the state to take responsibility for the kid either, or even satisfied the conditions the state has in place, such as using a doctor.

Maybe it would be better for the state to just suck it up and deal with supporting the kid in this case. I guess there should be some legal way to absolve donors, surrogates, etc of responsibility. There seems to be a way to do it, these people just neglected to do it.

Sucks all around.
posted by Ad hominem at 5:39 PM on January 2, 2013


Mmmmm. But how should the law make that distinction?

...maybe when it's clear that the child has two parents already?
posted by roomthreeseventeen at 5:39 PM on January 2, 2013 [22 favorites]


This entire case is about this couple not bothering to follow the rules and involve a doctor for some nominal fee.

Sometimes, the case is not about people not following the rules. Sometimes, it's about the rules being useless or counterproductive. People get harmed at the margin of the law all the time, even if the law is just or necessary. We should use that as an opportunity to evaluate that law, not blame the victims.

People use the corner cases to argue for and against things all the time. I don't think it's productive to dismiss them as "just follow the law, lol".
posted by TheFlamingoKing at 5:40 PM on January 2, 2013 [33 favorites]


What about adoption? If a young couple has a kid, signs away their rights to the kids and gives the child up for adoption --- should the couple be responsible for child support should the adopting parents divorce?
I would assume this would depend on whether they involved the state and went through the legal adoption process or if they just signed away their kid to another couple without telling anyone.

Now fundamentally, as a BHL I believe Kansas should just suck it up and pay for the kid, but then I'm not a tax payer in Kansas.
posted by fullerine at 5:41 PM on January 2, 2013


This is the kind of stuff that makes men's rights types furious but I honestly don't think you shoild be able sign away your responsibility for a child. He signed an agreement with two women, not the child, who now needs to be supported.

This presumes he has, or should have, any responsibility in the first place. Why should he?
posted by kafziel at 5:42 PM on January 2, 2013 [5 favorites]


Like most human endeavours, it seemed like a good idea at the time.
posted by ovvl at 5:43 PM on January 2, 2013 [3 favorites]


I don't think it's productive to dismiss them as "just follow the law, lol".

In general I agree with you, but I do not think that's the case here. Involving a doctor in an artificial insemination seems like a reasonable idea to me, especially when net result is that the child loses legal rights to support from their biological parent. I mean, presumably the mother saw a doctor during her pregnancy and she either had an obstetrician or a midwife present at the child's birth.

And personally I don't think this is "lol" territory, but it does seem like a case of poor planning resulting in a bad outcome that could have been prevented easily.
posted by GuyZero at 5:44 PM on January 2, 2013 [3 favorites]


Oh jeez I forgot not to read the comments on the Huffpost piece. Don't make my mistake, kids.

If the original non-bio mom has the ability to pay, I suppose she could just reimburse the donor, but it sounds like that's not the case maybe?

What a mess. I think this guy is probably screwed despite his good intentions.

I actually had a friend who did something similar...had sex w a promise that she would never come after him for child support, written on a piece of notebook paper they both signed. He was lucky she never did because of course legally, he was a sitting duck. Kid is grown now.
posted by emjaybee at 5:46 PM on January 2, 2013 [2 favorites]


We should use that as an opportunity to evaluate that law, not blame the victims.

Sure, but if you're in Kansas you'll have to get in line behind the people who think the theory of evolution ought to be taught in schools.
posted by KokuRyu at 5:46 PM on January 2, 2013 [2 favorites]


... my understanding is the fee to have the donations done with a doctor around would have been very significant.

This might be one of those cases where if you can't afford to do it right, you can't afford to do it. This was way too serious an agreement to enter into, on everyone's part, without legal advice.

A friend of mine had her ex-husband terminate his parental rights for their son and it was big deal and required state approval, which was hard to obtain. The state did not want to be unable to go after him should she fall on hard times. She had to basically say she would not ever seek assistance from the state.
posted by shoesietart at 5:52 PM on January 2, 2013 [5 favorites]


If you're too foolish or arrogant to read the relevant laws, or you were too broke to get a doctor or lawyer involved, you had no business trying to set up a multi-decade legal agreement involving a child anyway, and all the other comments about parents "not bothering" to involve a doctor, or being too cheap/lazy/whatever else you imagine we are:

I'm going to guess most of you are able, biologically and legally, to reproduce with the mate of your choice, without getting a doctor or lawyer to approve it. Well, I wasn't able to, because I was a single dyke when I got pregnant, and I didn't have the money or inclination to hire a team of professionals to help me make a kid.

There is no medical reason for a doctor to be involved in a simple donor insemination.

There is no moral reason why two or three mature adults, who agree to the same terms of parenting, should have to involve the state in their agreement.

The law isn't always right, particularly when you consider that the law consistently inserts itself in queer lives in a way it doesn't do in straight ones.
posted by latkes at 5:53 PM on January 2, 2013 [94 favorites]


This presumes he has, or should have, any responsibility in the first place. Why should he?

Ignoring the fact that they tought they had a legal agreement. He donated his sperm with the express intent of conceiving a child. If he actually had sex with the mother he would be responsible for any children right? Why does removing the sex part remove his responsibility for the child.

I think everyone in this case has the best of intentions, I'm just not sure responsibility to provide for children should default to the state when people don't even follow the rules the state has set forth.

I think people should have kids however they want, with whoever they want. I just don't think they should be able to abdicate responsibility willy-nilly
posted by Ad hominem at 5:55 PM on January 2, 2013 [2 favorites]


Or maybe I should just say, be aware fellow commenters that you are talking about the life choices made by real people, who are here in this thread with you now.
posted by latkes at 5:55 PM on January 2, 2013 [17 favorites]


I don't think this is a men's rights issue (yech), it's a case of discrimination against a lesbian couple, where the state does not consider them to be the "real" parents.

Here in California, at least as of a few years ago, the non-biological mom in a lesbian couple had two avenues to become the "real" parent of the child. The usual route was to adopt the child, going through an investigation of their suitability to be a parent, interviews with neighbors, and a day at family court. If I recall correctly this process takes a couple of years.

I heard that there was a faster alternate route, and that was for the biological mom to sue the non-biological mom for paternity.

It's an unfortunate and large burden on a mom who has been there even before the birth of her and her partner's child, and while I understand how it came about in law and is consistent with case law etc. I predict we and future generations will one day look back upon this as a seriously outdated infringement on the civil rights of same-sex couples who just wanted to be loving parents.
posted by zippy at 5:59 PM on January 2, 2013 [6 favorites]


...maybe when it's clear that the child has two parents already?

Is that clear, in this case? The whole reason The state is going after him is because the mother applied for benefits as a single parent. Should Kansas be sending a caseworker to their house to go "ah-hah! On your application you said you were single parent and this woman was your roommate, but you two sure look like lesbians to me! No benefits for you!"
posted by Diablevert at 5:59 PM on January 2, 2013 [1 favorite]


Seems easily fixable by paying the child support and having them parents give them money back to him.

Well not exactly. It sounds like the mother needs the income - she's arguing to be eligible for state benefits, the state is saying that she needs to get money from the 'dad' first. So if he pays her the money and she gives it back, she's got nothing to live on (specifically, to buy health insurance for the kid from).


What about the other mother? This would all depend on what, exactly, their written contracts says, but it seems to me that Marotta should be going after Bauer to bear whatever child support costs the state wants Marotta to pay, under a theory that the written contract is either a written or an implied-in-fact contract whereunder Bauer, as the non-biological parent, agreed to assume all the rights and legal obligations of a biological father. I'm just shooting from the hip there, obviously (as it were), but it sounds to me like Bauer is effectively avoiding having to financially support her own child now that she split from her ex.
posted by The World Famous at 6:01 PM on January 2, 2013 [11 favorites]


i think if the law afforded the mothers the same protections straight couples get it would be a lot easier to be like "follow the law, jeez!" but the fact is that a lesbian couple in kansas is starting from a disadvantaged place and calling them lazy or thoughtless or whatever else seems give no credit for their position.

if a married straight couple is presumed to be the parents of a child that comes out of their marriage, a married gay couple should be given the same sort of blanket of discretion. which brings us back to kansas and gay marriage rights.
posted by nadawi at 6:02 PM on January 2, 2013 [8 favorites]


The state is going after him is because the mother applied for benefits as a single parent.

....which she is legally allowed to do since Kansas does not recognize her ex as ever having any legal relationship with her.
posted by roomthreeseventeen at 6:02 PM on January 2, 2013 [18 favorites]


It's an incredibly unethical result, but so is the same-sex marriage ban in the first place, and the myriad other ways that gays and lesbians in middle America are subject to discrimination and mistreatment. It's also, sadly, not something that surprises me. That doesn't mean I really blame anyone involved; the evils here are not theirs. But I do hope others will be more careful in the future, because, well, until the world stops sucking quite so much, we just have to be.
posted by gracedissolved at 6:04 PM on January 2, 2013


The purpose of the law is actually to protect the children

In the abstract, yes, but in this specific case, the only party being protected here is the State of Kansas and its CHIP funds. I do realize that those are taxpayer funds, which should be spent responsibly, but should Marotta really be on the hook for "wasting" said money? If someone has to pay, it seems about as fair to make the mothers repay the state aid with interest, making payments for the rest of their lives if necessary.

As I understand it, basically all of states' child support collection offices are paid for by the federal government (because most of the public assistance programs reimbursed by such efforts are paid for with federal funds too). Most of the writing on this that I've seen comes from the "men's rights" groups, so I'd appreciate it if anyone has any more neutral links on the subject. The states get both federal reimbursement at 66% on the dollar for Title IV-D child support programs, plus additional "incentive payments" for performing child support enforcement, paternity determinations, and other tasks. Under ARRA, the incentive payments themselves are (were?) also reimbursable on a 66% basis from the federal government.

The result of all this is that states have large financial incentives to act in exactly the way Kansas is doing here. Certainly, the government should pursue deadbeat parents and work to ensure that children are provided for. But, the argument goes, the financial incentives cause states to go too far and involve government in unnecessary enforcement (acting as an intermediary when the money is being paid voluntarily and consistently) and even to discourage joint custody or increased involvement by the noncustodial parent because that would reduce funding to the agency. (somewhat biased collection of articles here).

In any case, if someone knows more about the reality here or has links to resources from more balanced sources, I'd enjoy learning more about the subject.
posted by zachlipton at 6:06 PM on January 2, 2013 [5 favorites]


Seems easily fixable by paying the child support and having them parents give them money back to him.

Keep in mind -- though I don't know if Kansas does this -- in many states, applying for assistance programs requires signing over the right to collect support to the state. Which means the custodial parent never sees a dime of the support payments; instead they get money from some other state program, and the non-custodial parent's support payments go directly to the state's coffers.

The moment of signing over that right is also the moment when state governments -- by a miraculous coincidence -- suddenly begin revoking driver's licenses, issuing arrest warrants, etc. for the non-payment. One of the reasons that certain people get so upset about the system we have is the simple fact that it is utterly divorced (pun intended) from whatever useful purpose it was meant to serve, and is full of perverse incentives for state governments to do awful things in pursuit of money that will never ever go to a parent or a child.
posted by ubernostrum at 6:07 PM on January 2, 2013 [6 favorites]


I feel badly for the man in this case. He made a dumb, not obvious error, and now he's likely going to have to pay a lot of money as a result.

But, as a man, I'm responsible for any life created by my sperm, and my intent doesn't really matter. If I accidentally get a woman pregnant, do you think I should be on the hook for child support? I do!

If I want to move outside that rather simple rule (my sperm = my responsibility), I need to figure out what the relevant laws are, and follow them. For example, kids are given up for adoption all the time, absolving the biological parents of all responsibility. To do that takes a lawyer, paperwork, and legal filings.

Why should this situation be any different?

Think about this another way. Suppose the biological mom was insisting that, in fact, the biological Dad had agreed to financial support. And the biological Dad said he never made that promise. Then what?

That's not this case, and, as I said, I feel for the guy. But we need a legal framework that is setup for that case -- and that's what these folks have run into in Kansas. A rather dopey framework, perhaps, but a framework none the less.
posted by Frayed Knot at 6:09 PM on January 2, 2013 [3 favorites]


Oh, and this really has nothing to do with Gay Marriage at all. Straight women have pregnancy through artificial insemination, too.

In this particular case, take the woman who isn't the biological mom completely out of the picture. Nothing changes. Dude got a woman pregnant without properly surrendering his parental rights. Dude is now on the hook for child support.
posted by Frayed Knot at 6:12 PM on January 2, 2013 [1 favorite]


Metafilter: a quirky blend of a scam and a incredibly good idea.
posted by jepler at 6:14 PM on January 2, 2013 [6 favorites]


The result of all this is that states have large financial incentives to act in exactly the way Kansas is doing here.

Very sharp comment. The (other) real story in this article is about welfare 'reform' and the scarcity policies pursued by neocons (including Democrats) which are taking apart our already limited safety net.
posted by latkes at 6:17 PM on January 2, 2013 [3 favorites]


Continuing my thought above about the idea that Marotta might be able to go after Bauer on a breach of contract theory (and/or other theories), it's interesting that the HuffPo story mentions that Marotta has a lawyer who didn't return calls and that the reporter was unable to get in contact with Bauer or Schreiner. So apparently all the story is going on is court records and whatever Marotta told them. Combined with the fact that the reporting on the case is clearly going for the perfectly understandable angle of how dumb Kansas law is and how unfair it is to Marotta, it seems to me that there are some pretty huge areas of information about the case that we just are not seeing here.

Is Marotta suing or planning to sue Bauer for reimbursement of child support costs levied by the state against him? We don't know. And how much is Bauer kicking in in terms of child support? Is her contribution or lack thereof playing any part of the state's consideration of factors? Has Schreiner attempted to force Bauer to pay the full child support by way of a breach of contract suit or any other means prior to seeking state assistance? I'm very curious as to what all the facts are here.

(But yes, I think Kansas law is seriously messed up in several respects in this case.)
posted by The World Famous at 6:17 PM on January 2, 2013 [1 favorite]


Oh, and this really has nothing to do with Gay Marriage at all. Straight women have pregnancy through artificial insemination, too.

In this particular case, take the woman who isn't the biological mom completely out of the picture. Nothing changes. Dude got a woman pregnant without properly surrendering his parental rights. Dude is now on the hook for child support.
'

But not really. "Dude" donated his sperm to a couple who have seven other children that they co-parent. Kansas makes an assumption of parentage if a man and woman are married. Assuming these women at some point wanted to be married to protect their family, it's extremely relevant.
posted by roomthreeseventeen at 6:17 PM on January 2, 2013 [7 favorites]


What about the other mother? This would all depend on what, exactly, their written contracts says, but it seems to me that Marotta should be going after Bauer to bear whatever child support costs the state wants Marotta to pay, under a theory that the written contract is either a written or an implied-in-fact contract whereunder Bauer, as the non-biological parent, agreed to assume all the rights and legal obligations of a biological father. I'm just shooting from the hip there, obviously (as it were), but it sounds to me like Bauer is effectively avoiding having to financially support her own child now that she split from her ex.

Bauer is ill (see this article), otherwise this would not be the issue that it is. The couple broke up and the other could pay support (and adhere to the agreement with the sperm donor) but in this case, the person that would pay support is too ill to work.

I think this is clearly a gay right's issue and the parties involved didn't do enough to legally protect one another. LGBT folk have to be careful and explicitly protect their rights. It's expensive to do but otherwise, you can get screwed and that's even more expensive.
posted by shoesietart at 6:17 PM on January 2, 2013 [2 favorites]


it is about gay marriage because the law doesn't recognize her and her ex as co-parents. sure, if you change all the details it's a different situation, but with these details here the discrimination against people who are gay and their families is a central point.
posted by nadawi at 6:18 PM on January 2, 2013 [8 favorites]


Bauer is ill (see this article),

Ah, my mistake.
posted by The World Famous at 6:19 PM on January 2, 2013


Which means the custodial parent never sees a dime of the support payments; instead they get money from some other state program, and the non-custodial parent's support payments go directly to the state's coffers.

Payments over and above the cost of aid are sent to the parent receiving support. In fact, I think most if not all states now act as intermediaries in child support - the supporting parent pays the state, and the state distributes the payments.

The thing the states are trying to prevent is cases where the receiving parent is pressured into not pursuing support (usually by threats of custody battles), or are paid under the table so as to avoid reporting it as income (for things like taxes and college loans and such). As well as being a neutral third party able to document that the support was collected and disbursed according to the court order.

And since that money goes through the state, if the receiving parent owes money (fines or taxes, for example) the state will gleefully collect it from the child support and reduce the amount disbursed.
posted by Pogo_Fuzzybutt at 6:20 PM on January 2, 2013 [1 favorite]


It's hard to sign away your paternity responsibilities.

It should be hard to sign away your paternity responsibilities.
posted by ftm at 6:25 PM on January 2, 2013 [3 favorites]


I love this part from the first link:

Bauer and Schreiner have said they fully support Marotta’s efforts to fight the state’s request. When Bauer was diagnosed in March with what she calls “a significant illness” that prevents her from working, Schreiner sought health insurance for their daughter from the state. The DCF told Schreiner if she didn’t provide the sperm donor’s name, it would deny any health benefits because she was withholding information.


I'm no insurer but I'm guessing the issue there is that family medical history is kind of a bit part of dealing with medical insurance. That's one area where obviously a distinction needs to be made between biological father and guardian.

And latkes, I'm sure as hell not going to judge you or anyone else for their life choices around becoming parents. Kansas has an impractical system set up but from a legal standpoint it's clear why they have it there. A doctor is licensed by the state and thus has legal obligations to the state as well as expertise, meaning that in cases of dispute the doctor may be called not only as an eyewitness but as an expert witness, something the state takes seriously when drafting legislation for legal exceptions to general rules, such as this one.

That said, a little more thought into this process would have been warranted.

But let's be clear that the process for sperm donation and legal abdication of responsibility for child support isn't the real problem here. Or at least not the biggest one. If Kansas had marriage equality, chances are that these women would have been married before jumping through the hoops necessary for them to conceive, and there would already be a legal framework set up to automatically transfer responsibilities of paternity over to the partner. Just one more reason it is absurd that states are wasting time refusing to grant SSM when they will all inevitably have to one day soon anyway.
posted by Navelgazer at 6:26 PM on January 2, 2013 [1 favorite]


I should add that obviously for single mothers using sperm donors the problem is still obviously with an unwieldy process, but that in this particular case if the laws were just it never would have come up.
posted by Navelgazer at 6:31 PM on January 2, 2013


I've never understood what the incentive for sperm donation is? An orgasm?

There was an askme a few weeks back where someone just wanted to make sure he had lots of progeny, without any responsibility or involvement. It was just very important to him that the world contain lots of little versions of him.

TL;DR: people are fucking weird.
posted by pompomtom at 6:33 PM on January 2, 2013 [2 favorites]


Argh
posted by bz at 6:35 PM on January 2, 2013


The five year old kid knows who her parents are. The friends of the kid know who her parents are. The parents and their friends know who the parents are. How come some folks here are saying the man has parental responsibility? (I can understand Kansas not getting it, but MeFi?)

Thinking that guy should have any responsibility flies in the face of both science and compassion.

Do you think leaving sperm in Tupperware causes babies?

Babies happen when two people love each other very much.

Y'all should be ashamed of yourselves.
posted by pickles_have_souls at 6:37 PM on January 2, 2013 [12 favorites]


mr_roboto: "This is why you should hire a lawyer when you're trying to do legal stuff."

And how, exactly, shall we determine we are doing "legal stuff."

Legalities come into play when I have consensual sex. I feel pretty well versed on the legalities of sex in my locale, but when I travel I should probably call a lawyer for a briefing right? I don't want to get caught by any legal unknowns. I'd hate to sodomize someone in a state where that's illegal.

I just rented an apartment. Man, there was a lot of paper work! Most of the paperwork was legally binding! I feel like I understand everything I signed to but I guess I should've hired a lawyer just to make sure there weren't any unknowns in the process.

If there is no area of life free from the encroachments of law (and indeed I believe there are none, in this country) then law owes it's patrons the burden of pragmatism and not vice-versa.

Insisting the solution to this problem is the further reifying of legalistic pedantry is simply inhumane, impractical and insane. The law should support the evolution and health of society not pin it to some idiotic and rigid ideal.

Xurando: "I've never understood what the incentive for sperm donation is? An orgasm?"

It's a well known fact that men are only motivated by selfishness.
posted by Matt Oneiros at 6:39 PM on January 2, 2013 [16 favorites]


How come some folks here are saying the man has parental responsibility?

If my (hetero) partner and I fall on hard times, and we draw up a similar document in Wordpad and I sign it, should my income stop being considered?

If their story is true as stated (and I assume it is), of course he doesn't have responsibility. But I can see why a state - even Kansas - can't get into the business of just taking peoples' words for things.
posted by ftm at 6:46 PM on January 2, 2013 [1 favorite]


I'm no insurer but I'm guessing the issue there is that family medical history is kind of a bit part of dealing with medical insurance. That's one area where obviously a distinction needs to be made between biological father and guardian.

That's not at all the issue here. Kansas has, as I understand it, provided the child with health insurance under what is essentially a welfare program under Medicaid to reduce the number of uninsured children (CHIP). There's no medical underwriting or risk assessment being done here based on family medical history, because the government is going to pick up the tab regardless (actually, given the low Medicaid reimbursement rates, doctors and health care institutions are going to be paying for a lot of it, but that's a different problem). The only reason the state wants to know the identity of the biological father is in order to go after him for the bill. Nobody is looking at genetic risk factors for diseases or anything here.
posted by zachlipton at 6:46 PM on January 2, 2013 [4 favorites]


Go forth and make babies with my sperm! What could go wrong? Eh, whatever.
posted by Brocktoon at 6:51 PM on January 2, 2013


Do you think leaving sperm in Tupperware causes babies?

Babies happen when two people love each other very much.


You realize, of course, that the baby in this case happened when two people who loved each other very much found someone willing to leave sperm in Tupperware for them and that, but for the person leaving sperm in Tupperware (or equivalent), the baby would not have happened, right? I'm not saying I agree with the Kansas law here (I don't), but still - babies do not just magically happen when two people love each other very much. There is biology involved.

And how, exactly, shall we determine we are doing "legal stuff."

One way is to watch out for situations where you start writing and signing documents purporting to give up legal rights. Watch out for words like "legal" and "contract."

I feel pretty well versed on the legalities of sex in my locale, but when I travel I should probably call a lawyer for a briefing right?

If you plan to have sex in a foreign jurisdiction where you're not familiar with the applicable laws, then yes, it would be a very good idea to familiarize yourself with the legal implications of having consensual sex in that jurisdiction.

I just rented an apartment. Man, there was a lot of paper work! Most of the paperwork was legally binding! I feel like I understand everything I signed to but I guess I should've hired a lawyer just to make sure there weren't any unknowns in the process.

Not a bad idea at all. I'm a lawyer and on more than one occasion I have sent a lease I was about to sign to another lawyer just to get a second set of eyes on it. I've also never (since law school) signed a lease without first becoming familiar with the applicable laws in the jurisdiction and haggling over various provisions.

If there is no area of life free from the encroachments of law (and indeed I believe there are none, in this country) then law owes it's patrons the burden of pragmatism and not vice-versa.

Spoken like a Supreme Court justice who can't find a precedent to support an argument.
posted by The World Famous at 6:55 PM on January 2, 2013 [4 favorites]


And how, exactly, shall we determine we are doing "legal stuff."

I think when you sit down to sign a written agreement that is intended to be binding about your legal (in this case parental) rights and obligations, that's a pretty good indication that 'legal stuff' is happening.
posted by His thoughts were red thoughts at 7:00 PM on January 2, 2013 [6 favorites]


And how, exactly, shall we determine we are doing "legal stuff."

Ignorance of the law being no excuse is trite but true. And a lease is not a child. I mean under your reasoning, why can't you sell a baby if it's going to a good home and you don't know that it's illegal?

The two women knew enough to craft an agreement; they should have reviewed it with someone who knew family law. And the man should have had the agreement reviewed as well.

The state has an interest in ensuring that children are cared for on their parent's dime, otherwise it has to do it. In the situation I mentioned above with my friend who had her child's father's rights terminated, the state was resistant, probably for a number of reasons. One being on the hook for future care. Also, what's to stop a parent (doesn't have to be a guy) from coercing the other parent into terminating rights so they don't have to provide support.

Remember, people didn't used to have to provide the father's name in order to get aid and many didn't. And there didn't used to be away to verify paternity. Now, the law makes an effort to seek reimbursement from the noncustodial parent if the other is seeking state aid.
posted by shoesietart at 7:04 PM on January 2, 2013


It's kind of amazing how much legal stuff we humans do just by existing. Hell, one can't even stop existing without making more legal stuff.
posted by Dr. Zira at 7:12 PM on January 2, 2013 [1 favorite]


zachlipton: Thanks. I was for some reason reading the "need the name of the biological father for health insurance" issue as separate from "need the biological father to pay child support issue, but of course you are correct.

Matt Oneiros: I get what you're saying, and I sympathize, but when you are drafting up a contract on your own to change someone's legal obligations as they are viewed by the state, then I'd say you are in some pretty clear "get a lawyer" territory. Again, I sympathize with them. They probably did not expect that the State of Kansas would become a party to their agreement, or comprehend that the State was, in fact, an unconsulted party at the time the agreement was written and signed, and were just doing what they thought was reasonable and prudent under their circumstances. That, however, is exactly why lawyers are necessary in those situations.

(Hell, it's possible that even a notary public could have recognized that this contract was unenforceable.)

But you are absolutely right about the need for pragmatism in the justice system, and in most court proceedings I've witnessed or been party to or argued in, I've seen exactly that - pragmatism and a devotion to understanding the nature of the actual case at hand. This isn't merely the province of, as The World Famous said, "a Supreme Court justice who can't find a precedent to support an argument." Viewing the law with an eye towards the case at hand is done all the time, and in fact is probably only truly a vice at the appellate level and above (where laws and judicial decisions are themselves the things "on trial," so to speak.)
posted by Navelgazer at 7:18 PM on January 2, 2013 [1 favorite]


And in case I haven't made it clear, I believe that the court should rule for Kansas to just suck it up in this case because any other result would be a misapplication of justice.
posted by Navelgazer at 7:19 PM on January 2, 2013


For a non-mother fucker that guy is really a mother fucker. The kid is his flesh and blood. You find yourself in this situation and you look in the mirror and you say, "this isn't how we planned it, cowboy in the mirror there, but our flesh and blood out there needs us after all." Maybe legally you can get out of this, but you ain't no kind of man after that. You're just a turkey baster with greasy hair who will be forgotten in a junk drawer and replaced with a trip to the dollar store. Do not blame society for trying to make a man behave like one for once in his pathetic life.
posted by humanfont at 7:32 PM on January 2, 2013


Do not blame society for trying to make a man behave like one for once in his pathetic life.

Oh, good god, really? The man donated his sperm to two loving parents. Yes, he made a mistake by not obeying the law to the exact letter, but whether or not he pays the state back and then pays child support is completely irrelevant to whether or not he "behaves like one."
posted by roomthreeseventeen at 7:36 PM on January 2, 2013 [25 favorites]


If you think you are more able to define a family, and the roles of the people in that family, than the members of that family, you might want to be careful who you accuse of being a 'motherfucker'.

The mom was not seeking money from her donor, the state was. I love and admire my sperm donor for giving me a greater gift than any other person ever has. My daughter wouldn't be here without him. But that's what I asked for and that's what I got. If he started offering me money when I fell on hard times, he would have crossed the line we had agreed to, and I would have thought that was wrong. I know what my donor is and isn't, and he isn't responsible for my finances.
posted by latkes at 7:37 PM on January 2, 2013 [10 favorites]


humanfront: the issue isn't one of obligations to the child, but of obligations to the state. I see now that roomthreeseventeen has already said the rest of what I want to say there, so I'll just leave that as it stands.
posted by Navelgazer at 7:38 PM on January 2, 2013 [1 favorite]


Do not blame society for trying to make a man behave like one for once in his pathetic life.

To be clear, this notion of manhood has been killing us all for centuries, now. Enough of that shit, please.
posted by Space Coyote at 7:39 PM on January 2, 2013 [39 favorites]


Kansas makes an assumption of parentage if a man and woman are married.

Is that true if the ex-husband disputes it? What if the ex-husband gets a DNA test and says, "See, that's not my child so I'm not paying child support"?
posted by straight at 7:42 PM on January 2, 2013


Do not blame society for trying to make a man behave like one

Quick! Get the white feathers!
posted by pompomtom at 7:46 PM on January 2, 2013 [6 favorites]


Sure, the mothers made a mistake in not looking up the exact laws. The sperm donor did as well. But the problem isn't that they made a mistake -- we all have made big mistakes, some people just get unlucky -- it's the way Kansas (and the entire US) treat gay couples and parenthood and assisted reproduction and social safety nets. (I wondered above about what would have happened had it been a straight couple in this situation, but that's an accidental catching in the net.)

None of these people sound like terrible people trying to avoid paying for their child. One mother is too sick to work, the other mother is trying to get the child insured through a method that straight couples have access to, and the sperm donor was never planning to be a father (though he is a foster parent). "Well meaning people get caught up in legal bureaucracy" is, essentially, the title of this post.
posted by jeather at 7:48 PM on January 2, 2013 [10 favorites]


Am I the only one who finds the "co-parenting 8 children" excessive? Regardless of your sexual orientation you wanna raise 8 children these days you better be beyond rock solid as a couple/team on every level.

To note, I couldn't find where it says the 8 children part in either article.
posted by straight_razor at 7:50 PM on January 2, 2013 [3 favorites]


I truly do not understand the viewpoint that a legally recognized marriage between Schreiner and Bauer would solve this problem.

Although it's never stated explicitly, it seems like Schreiner is the biological mother. She and Bauer split up, Schreiner applies for aid. The state asks who the father is, and Marotta finds himself on the hook for child support.

If Bauer and Schreiner were legally married, what's the difference? Yes, that would make Bauer the child's legal parent, but it doesn't make her the father. That takes sperm, not legal standing.

Legal marriage between Bauer and Schreiner or not, Marotta remains the kids father, and he failed to properly surrender his parental rights.

(And, so that I am not misconstrued, I am 100% for legalizing gay marriage. That just seems completely orthogonal to this situation to me.)
posted by Frayed Knot at 7:50 PM on January 2, 2013 [1 favorite]


shoesietart: "This might be one of those cases where if you can't afford to do it right, you can't afford to do it. This was way too serious an agreement to enter into, on everyone's part, without legal advice."

mr_roboto: "Certainly not significant compared to the cost of raising a child?"

This is not a burden that any heterosexual couple needs to endure when having a child. Nobody needs to file paperwork before climbing into bed. Applying this restriction to consenting gay couples is discriminatory and arbitrary.

I should also add that donating sperm is incredibly difficult when a gay person is involved (let alone several). A friend of mine was asked by two of his friends (a lesbian couple) to be the surrogate father (sperm donor) to their child. We live in uber-liberal Washington, DC, so this should have legally been a cakewalk....except that it wasn't. There's no fertility clinic in DC, which left a small handful of clinics Maryland and Virginia as the only available legal options. He was turned away from the first sperm bank after the doctor thought that his sample wouldn't be viable.

After a few weeks of wearing boxers and practicing saint-like celibacy, he tried again at a different clinic. After giving his sample, the receptionist saw him in the waiting room nervously holding hands with his boyfriend (being selected as the surrogate father really meant a lot to him). A few minutes later, the doctor came out, and quietly told him in the most polite southern manner possible that his sample had been rejected for being "high risk," and that he shouldn't attempt to donate in Virginia ever again.

The next year, he donated in New York, and lied about his sexuality when questioned by the physician. After being subjected to a barrage of blood tests, his sample was placed in quarintine, primarily as a precaution against HIV, which is transmittable but undetectable in its early stages. After the quarantine period was over, the clinic got cold feet about the legal ramifications of giving the sperm to a lesbian couple, and discarded the sample.

I should add here that my friend is lifelong friends with the couple that he was trying to donate to. By this point, he was single and had deliberately stayed celibate for several months to avoid catching something that could prevent him from being a donor. They would have taken his word that he wasn't going to develop any transmittable STDs over the next 6 months. None of this mattered to the clinic, but I suppose the precautions exist for a reason... However, again, blood tests aren't required when a straight couple climbs into bed.

Finally, he found a clinic in a third state (which was a plane ride away from DC) that wasn't going to ask him about his sexuality, and didn't object to donating the sample to a same-sex couple. There would still be a quarantine, but that's just the standard procedure around the country.

By the time his sperm had been released from quarantine, over three years had gone by. The insemination didn't take hold. They're still trying.

Please don't tell me that this couple should have gone through legal channels -- those channels almost certainly didn't exist in Kansas 4 years ago.
posted by schmod at 7:51 PM on January 2, 2013 [44 favorites]


straight_razor, sorry, I may have gotten that from this article, which I didn't link in the OP.
posted by roomthreeseventeen at 7:54 PM on January 2, 2013 [1 favorite]


If Bauer and Schreiner were legally married, what's the difference? Yes, that would make Bauer the child's legal parent, but it doesn't make her the father. That takes sperm, not legal standing.

The state doesn't care who the father is. The state just cares about who it can legally sue for support. The legal parents are usually the first targets, and the presumption is always that the married couple are the parents.
posted by snickerdoodle at 7:56 PM on January 2, 2013 [2 favorites]


Frayed Knot: Marriage Equality would mean that the assumption of legal parentage currently present under Kansas law for straight couples would fall on Bauer (and any questions of disputed parentage are truly orthogonal to this discussion, as the parties here are in agreement on the issue) and as such that said responsibilities would follow her after the break-up/hypothetical divorce. Kansas would have no reason to go after Marotta because the legal framework for transferred assumption of parentage would have already been in place and automatic.

In other words, if Kansas recognized same-sex marriage (or even civil unions) then this would be an issue of Bauer proving inability to work rather than the clusterfuck that it is.
posted by Navelgazer at 7:56 PM on January 2, 2013 [5 favorites]


If Bauer and Schreiner were legally married, what's the difference? Yes, that would make Bauer the child's legal parent, but it doesn't make her the father. That takes sperm, not legal standing.

In Quebec, for instance, the birth certificate shows two parents, not a mother and a father. This is a problem with birth certificates, not marriage (and here this change preceded gay marriage being legalised, though I think it was at the same time as civil unions and maybe de facto unions were allowed). But I can't see how you can allow gay marriage but require MOTHER and FATHER on the birth certificate instead of PARENT 1 and PARENT 2.
posted by jeather at 7:57 PM on January 2, 2013 [1 favorite]


Do you think leaving sperm in Tupperware causes babies?

Babies happen when two people love each other very much.


Are you joking? Babies happen when sperm fertilizes an egg, and the mother then carries the baby to term.

Love hasn't got a damn thing to do with it. it would be a much, much better world if every baby born came into a loving family, but that just isn't the case. Not even close.

And how, exactly, shall we determine we are doing "legal stuff."

The word "rights" in "parental rights" is a big clue.
posted by Frayed Knot at 7:57 PM on January 2, 2013 [8 favorites]


Navelgazer: Ah! Thank you, the light bulb is now on for me.

So, were they married, would Marotta automatically surrender parental rights? If so, that would answer this particular problem, but open a whole 'nother can of worms.
posted by Frayed Knot at 8:02 PM on January 2, 2013


Frayed Knot: "Legal marriage between Bauer and Schreiner or not, Marotta remains the kids father, and he failed to properly surrender his parental rights."

One would think that this would be pretty fucking implicit when a married man donates sperm to a lesbian couple and signs a legal agreement surrendering his parental rights to the couple.

Sorry, but this is just an absurd standard of proof to hold this man to. Considering all the other precautions that the three of them took, the doctor thing is just a completely tiny and seemingly-unrelated technicality to pin the guy on.
posted by schmod at 8:05 PM on January 2, 2013 [16 favorites]


This is one of those cases where all the systems fail, one after another. Marriage equality, health care, welfare, bureaucracy. It would be great if the federal crime of becoming too sick to work didn't mean the entire unraveling of your life and the life of others.
posted by bleep at 8:08 PM on January 2, 2013 [10 favorites]


Please don't tell me that this couple should have gone through legal channels -- those channels almost certainly didn't exist in Kansas 4 years ago.

According to the article the law in question has been in place since 1994.

This is not a burden that any heterosexual couple needs to endure when having a child. Nobody needs to file paperwork before climbing into bed. Applying this restriction to consenting gay couples is discriminatory and arbitrary.

Would you include gay male couples in this? Do you think the state has no role in assuring that adoptions and surrogacy are happening in a manner that's regulated and fair to the birth mother?
posted by mr_roboto at 8:15 PM on January 2, 2013


This is not a burden that any heterosexual couple needs to endure when having a child. Nobody needs to file paperwork before climbing into bed. Applying this restriction to consenting gay couples is discriminatory and arbitrary.
...
Please don't tell me that this couple should have gone through legal channels...


Yes, make no mistake, this whole mess is the result of institutional discrimination and laws that have not caught up with reality.
posted by His thoughts were red thoughts at 8:16 PM on January 2, 2013 [2 favorites]


What if a girl, call her Annabelle, tricks her boyfriend Richard into leaving a sperm "donation" on her, surreptitiously collects and delivers it to her good friends Bandhavi and Calliope. These two, a lesbian couple, use the sperm to conceive and bear a child. Five years down the line when Bandhavi and Calliope break up, who has parental rights & responsibilities for adorable little Evangeline?
posted by pickles_have_souls at 8:23 PM on January 2, 2013 [2 favorites]


mr_roboto: "According to the article the law in question has been in place since 1994."

No. I'm saying that it would have been very difficult to find a doctor who would have agreed to the procedure (possibly even due to a host of other regulations). If my intelligent and well-connected friend couldn't manage to do it in a liberal enclave (where there were no laws against any of this, BTW), I can't imagine that things would be any easier in Kansas. It's backdoor discrimination.

And, yes. This process takes several years and tens of thousands of dollars. Raising a kid is expensive, but low-income families somehow manage to do it all the time.

mr_roboto: "Would you include gay male couples in this? Do you think the state has no role in assuring that adoptions and surrogacy are happening in a manner that's regulated and fair to the birth mother?"

Yes. I'd also include infertile heterosexual couples in it. For some reason, the process seems to go a lot more smoothly for them though.

There's a fine line between the state doing its diligence, and using its reach to arbitrarily discriminate against couples that cannot naturally give birth. If the extent of the investigation goes beyond a simple interview and visit that asks anything more than "Would we call Child Services on these people?," I'd argue that the line has been crossed as an unfair double standard.
posted by schmod at 8:27 PM on January 2, 2013 [7 favorites]


pickles_have_souls: "What if a girl, call her Annabelle, tricks her boyfriend Richard into leaving a sperm "donation" on her, surreptitiously collects and delivers it to her good friends Bandhavi and Calliope. These two, a lesbian couple, use the sperm to conceive and bear a child. Five years down the line when Bandhavi and Calliope break up, who has parental rights & responsibilities for adorable little Evangeline?"

I think I've seen this soap opera....
posted by schmod at 8:27 PM on January 2, 2013 [3 favorites]


It's amusing to watch the inane arguing going on in this thread. Especially when you consider that most of the arguing can be boiled down to identifying the definitions of words like 'parent' and 'marriage' and 'contract'.

What a poignant indictment of our society that we're not able to agree on what those things mean.
posted by Blue_Villain at 8:37 PM on January 2, 2013


I see that my views are not reflective of the majority here. I'm going to have to think more on the thread before comming back.
posted by humanfont at 8:41 PM on January 2, 2013 [5 favorites]


This quote has been alluded to above, and is well-known in legal circles and certainly some others, but it should be mentioned explicitly:

"Rich or poor, no one may sleep under the bridges of Paris."

This is the quote given to satirize the justification for laws which, universal on their face, tend to only oppress a certain and specific segment of society. As schmod has illustrated, no matter how facially neutral, this law sets up a system whereby gays and lesbians will inevitably run up against walls that straight couples and parents would not.
posted by Navelgazer at 8:44 PM on January 2, 2013 [15 favorites]


What if a girl, call her Annabelle, tricks her boyfriend Richard into leaving a sperm "donation" on her, surreptitiously collects and delivers it to her good friends Bandhavi and Calliope. These two, a lesbian couple, use the sperm to conceive and bear a child. Five years down the line when Bandhavi and Calliope break up, who has parental rights & responsibilities for adorable little Evangeline?

This was (scarily almost word for word) a hypothetical when I was doing health law in law school. In 2003. It's dismaying to see that the answer hasn't changed in the last decade.
posted by His thoughts were red thoughts at 8:48 PM on January 2, 2013 [1 favorite]


I see that my views are not reflective of the majority here.
I think the part where you confused 'sperm donation' with 'parenting' is where you lost most everybody. Not every sperm donor is a parent and not every parent is a sperm donor, biologically, legally or otherwise.

So let's not attempt to combine the two.
posted by Blue_Villain at 8:54 PM on January 2, 2013 [6 favorites]


Isn't it the case that heterosexual couples using a surrogate would also have to go to a doctor, and also consult lawyers? Heterosexual couples adopting would have to consult a lawyer as well.

The fact that it may be hard to find a doctor to perform the same services for same sex couples is discriminatory on the part of doctors, not the state.

I guess I'm not cut out to be a donor anyway, for better or worse I would cross a line and offer support, even if it was refused, rather than see my biological child go without or suffer, even knowing I was not the "parent". I can't help but think legal hurdles are a good thing but my bias is against me who will lie, cheat and try every trick in the book to get out of paying child support.
posted by Ad hominem at 8:59 PM on January 2, 2013


shoesietart: "This might be one of those cases where if you can't afford to do it right, you can't afford to do it. This was way too serious an agreement to enter into, on everyone's part, without legal advice."

This is not a burden that any heterosexual couple needs to endure when having a child. Nobody needs to file paperwork before climbing into bed. Applying this restriction to consenting gay couples is discriminatory and arbitrary.


Yes, it is a similar burden but one difference is that in a heterosexual couple, if the woman gets pregnant, the guy knows he's on the hook for child support. And a guy can't contractually sign that obligation away in an agreement with the mother (in Kansas). A straight couple using a surrogate or donated sperm (done by a doctor) also sign contracts.

A single woman woman seeking state aid who had made an agreement with a male friend for sperm would find herself in the same situation, i.e. bio dad has to pony up support. A single woman (or straight couple) who had received donated sperm via a doctor could receive state aid without the state going after bio dad. That's the key difference here, the state is going after bio dad because he didn't have the right to sign away his obligations to the child he helped create.

State law hasn't caught up with changing families and the women and donor didn't understand the consequences of their actions because they didn't seek legal advice. I said earlier that I thought this was a gay issue but it also applies to single parents who get sperm or eggs donated.
posted by shoesietart at 9:06 PM on January 2, 2013 [2 favorites]


Ad hominem: Married heterosexual couples would have the benefit of Kansas law assuming paternity on the part of the husband.
posted by Navelgazer at 9:11 PM on January 2, 2013 [2 favorites]


One of my besties conceived using sperm and a turkey baster. Like fifteen years ago. So to me, it's as normal as Thanksgiving. (It's not every day of the year, but you know it's gonna happen.) Ain't advanced tech we're talkin bout.

People made like this grow up and walk among us!!

Do you really wanna be that guy:
"How silly some gay parents are for not consulting a lawyer about conceiving," you say at a dinner party next week, and the fifteen year old sitting next to you rolls her eyes and replies, 
"Oh, yeah. *Totally* necessary to do *that*!" 
She shakes her head, and then brightens. "Too bad *your* parents didn't have to get a lawyer before making you. Maybe they woulda had second thoughts."
posted by pickles_have_souls at 9:13 PM on January 2, 2013 [5 favorites]


There was an askme a few weeks back where someone just wanted to make sure he had lots of progeny, without any responsibility or involvement. It was just very important to him that the world contain lots of little versions of him.

Ah, yes, this is the Law and Order: SVU where Uncle Jesse gets off on knocking women up and ends up getting exploded with a diving knife. (Spoiler.)
posted by maryr at 9:14 PM on January 2, 2013 [1 favorite]


Married heterosexual couples would have the benefit of Kansas law assuming paternity on the part of the husband.

But they would still need to consult a lawyer during an adoption and likely doctors in the case of a surrogate right? Are you telling me a heterosexual couple could find female surrogate, inseminate without a doctor, get the biological mom to sign away her rights without a lawyer and that would be fine and dandy?
posted by Ad hominem at 9:16 PM on January 2, 2013


No, I'm not. But this is a case of sperm donation.
posted by Navelgazer at 9:20 PM on January 2, 2013 [2 favorites]


Consenting adults should absolutely get to decide who the parents are going to be. Parenting is essentially a social construct not a biological one. If a man and a woman have sex and she gets pregnant, they've both assumed the risk of becoming a parent. All three adults here decided who would be the parents and who would not. The women assumed the parenting risk, releasing Marrota of it. It's clear as day to me.

What is also clear as day is that as a lesbian getting married this year, it seems like everyone else but my future wife and me will get to decide who will be the legal parents of any children we have. I live in liberal NYC. I'm lawyered up to the gills -my mother is a family lawyer and justice of the peace. And I'm fucking scared out of my wits to have a child because the family law system in this entire country is utterly outdated and completely screwed up.
posted by anthropoid at 9:22 PM on January 2, 2013 [14 favorites]


No, I'm not. But this is a case of sperm donation.

Sure. But heterosexual couples do, and likely should, have to jump through hoops in certain situations. I was really addressing

This is not a burden that any heterosexual couple needs to endure when having a child. Nobody needs to file paperwork before climbing into bed. Applying this restriction to consenting gay couples is discriminatory and arbitrary.

Which doesn't seem to be the case unless you don't count adoption or surrogates as having a child. Not all heterosexual couples can conceive by climbing into bed, so they turn to doctors, lawyers or turkey basters the same as same-sex couples. They would likely find themselves in the same predicament.

I'm all for equality, but it is still complicated even for heterosexual couples.
posted by Ad hominem at 9:36 PM on January 2, 2013


I see that my views are not reflective of the majority here. I'm going to have to think more on the thread before comming back.
posted by humanfont at 8:41 PM on January 2 [+] [!]


Hey, just want to positively call-out this comment. It's pretty rare on metafilter for folks to react like this when folks are jumping on them, so thank you humanfront for reacting this way instead of getting entrenched. I think this was brave, and I really appreciate it.
posted by latkes at 9:41 PM on January 2, 2013 [14 favorites]


I've never understood what the incentive for sperm donation is? An orgasm?

I would bet some men who don't want the financial responsibility or parenting responsibility of raising a kid might do it out of curiosity.
posted by discopolo at 9:42 PM on January 2, 2013


Which doesn't seem to be the case unless you don't count adoption or surrogates as having a child. Not all heterosexual couples can conceive by climbing into bed, so they turn to doctors, lawyers or turkey basters the same as same-sex couples. They would likely find themselves in the same predicament.

I'm all for equality, but it is still complicated even for heterosexual couples.


The thing is that gay people have no other way of having children - we have to involve a third party (and clearly have to involve the state). So while, yes, these issues do arise for hetero couples, the majority of the time there is no one else (or the state) involved in their most intimate, important decisions regarding parenthood.

We desperately need laws that reflect and PROTECT non-hetero AND non-traditional hetero families.
posted by anthropoid at 9:51 PM on January 2, 2013 [2 favorites]


Our baby, when we have one, will have two loving, committed parents. It will not have a male parent, regardless of how we obtain sperm. I want my child to have two parents, not three, and how dare the state say otherwise, regardless of whatever mistakes we make - like becoming too ill to work or divorcing.

Making the third party responsible for this child, regardless of the decisions made by consenting adults, discriminates against the women. Their right to state services should not be based on the involvement of a man who donated sperm but has no parental right to or responsibility for that child. It's not him getting "off the hook" - it's about two women getting to make their own life decisions and receiving access to state services when they need them.
posted by anthropoid at 10:00 PM on January 2, 2013 [5 favorites]


We desperately need laws that reflect and PROTECT non-hetero AND non-traditional hetero families.

I think we can all agree on that.

I think we also need to protect children and mothers. It sounds great to say it is just a social construct and parents are who you say they are but none of us here would do something like buy a baby in a third world country, get someone to give away their child through coercion, get out of debts, or legitimate child support by signing away your rights. We have laws in part to protect against the sins of the past.

I hope we can balance everyone's right to privacy and self-determination with protection against exploitation and shit like dead beat fathers getting paid under the table to avoid child support.
posted by Ad hominem at 10:09 PM on January 2, 2013 [1 favorite]


Consenting adults should absolutely get to decide who the parents are going to be. Parenting is essentially a social construct not a biological one.

I don't think anyone disagrees with this. It's a social construct that carries with it legal rights and responsibilities, however, which is why the state plays a role in regulating, for instance, adoption. You don't want to have system where babies go to the highest bidder.

We can quibble about the reasonableness of the particular standard that Kansas has established here. I don't think it's an unreasonable burden; it's certainly a lower burden than adopting parents would have to shoulder. It was incredibly irresponsible for these people not to investigate the legal framework that they were bringing a child into, I think.
posted by mr_roboto at 10:13 PM on January 2, 2013


I think we also need to protect children and mothers. It sounds great to say it is just a social construct and parents are who you say they are but none of us here would do something like buy a baby in a third world country, get someone to give away their child through coercion, get out of debts, or legitimate child support by signing away your rights. We have laws in part to protect against the sins of the past.

I honestly cannot see what these two things (adoption of foreign children and ensuring fathers support their children) have to do with ensuring the rights of couples to make their own decisions. These are not mutually exclusive.

And of course they should have lawyered up. But the situation is still the same and a judge should get that. I do think that the decision here represents discrimination against the couple, with the child perhaps getting hurt as a result.
posted by anthropoid at 10:15 PM on January 2, 2013 [1 favorite]


The State's interest is in ensuring that the child has the protection and support of two parents. And this little girl HAS the protection and support of two parents. In a sane world, those people would be recognized her parents regardless of her actual genetic origin -- same as a child I bore as the result of an affair would be recognized as my husband's, since we are married.
posted by KathrynT at 10:27 PM on January 2, 2013 [2 favorites]


I think the fllowing may have been already stated in the thread, but I'm just typing it out to clarify it in my own head.

Unless I'm missing something, (I don't have children) when a baby is born to a m/f couple there doesn't need to be any additional legal hurdle to just saying "he's the other legal parent" no matter who actually supplied the sperm.

Where this situation is discriminatory is that if this had been a m/f couple listed as parents on the birth certificate, the state would not have pressured the mother for proof of biological paternity. It would have just been assumed that the other parent was who she said it was.
posted by billyfleetwood at 10:31 PM on January 2, 2013 [3 favorites]


I love this discussion. I see all sides of this issue.
posted by ClaudiaCenter at 11:00 PM on January 2, 2013


Why is she going after the man instead of her lesbian partner? Woman's rights should not be two-sided. Along with the equality woman still have to fight for, comes equal obligation.
posted by Therapist in NYC at 11:16 PM on January 2, 2013


Why is she going after the man instead of her lesbian partner? Woman's rights should not be two-sided. Along with the equality woman still have to fight for, comes equal obligation.

Did you even read the article? The state is going after the guy, the moms are in total support of the donor's case. They don't want the state to go after him. There is no issue of them trying to shirk their "obligation".
posted by schroedinger at 11:24 PM on January 2, 2013 [8 favorites]


Jesus, read the thread? Or any of the articles in the post? Her lesbian partner is sick and unable to work, therefore has no money to give. So she went to the state, never involving the dude at all, but the state said he was legally responsible instead of her lesbian partner and called him in.
posted by jacalata at 11:25 PM on January 2, 2013


She's not going after the man, the Kansas Department for Children and Families is.
posted by ActingTheGoat at 11:35 PM on January 2, 2013


Arg! That's what I get for not hitting Preview.
posted by ActingTheGoat at 11:37 PM on January 2, 2013


And of course they should have lawyered up. But the situation is still the same and a judge should get that. I do think that the decision here represents discrimination against the couple, with the child perhaps getting hurt as a result.

As far as I can tell, there isn't a decision yet.
posted by Navelgazer at 11:39 PM on January 2, 2013


One of my besties conceived using sperm and a turkey baster. Like fifteen years ago. So to me, it's as normal as Thanksgiving.

This is an unfortunate juxtaposition.
posted by MuffinMan at 1:04 AM on January 3, 2013 [1 favorite]


As far as I can tell, there isn't a decision yet.

As soon as the state demanded to know who the biological father was, a decision had been made.
posted by anthropoid at 3:49 AM on January 3, 2013 [2 favorites]


I'm finding myself siding with the "You should have followed the law and used a doctor, instead of DIY" side of things.

However, this being gawdalmightyKansas, does anyone know if Kansas has any law governing insemination and same-sex couples? Could it be possible that the law in Kansas forbids doctors to knowingly inseminate a lesbian couple, and, thus, provoking their decision to DIY?
posted by Thorzdad at 4:54 AM on January 3, 2013


Even though the guy is not a parent and has no desire to be one, he still has a pretty significant and unbreakable connection by virtue if his dna contribution. I don't expect him to play catch in the backyard or change the diapers; the state isn't the parent here either.
posted by humanfont at 4:59 AM on January 3, 2013


No one claimed the state was the parent. Does applying for aid give the state the right to legally parent your child now?
posted by roomthreeseventeen at 5:26 AM on January 3, 2013 [3 favorites]


Even though the guy is not a parent and has no desire to be one, he still has a pretty significant and unbreakable connection by virtue if his dna contribution.
So would an egg donor. Should an egg donor be on the line for child support?

Should "society make her behave like a man for once in her pathetic life"?
posted by Flunkie at 5:32 AM on January 3, 2013 [10 favorites]


So would an egg donor. Should an egg donor be on the line for child support?

You can't donate eggs without a medical procedure; a doctor would necessarily be involved.
posted by mr_roboto at 5:40 AM on January 3, 2013


Yes, yes, I knew someone would bring that up. I didn't ask if an egg donor who underwent a procedure under the care of a doctor should be on the line. In the context of humanfont's outrage, that distinction frankly strikes me as akin to the unfortunately common claim that "the law does treat everyone equally - you can get married to a person of the opposite sex no matter whether you're straight or gay!"

Do you honestly think humanfont's "be a man, you pathetic motherfucker" bullshit cares?
posted by Flunkie at 5:45 AM on January 3, 2013 [1 favorite]


Maybe I should explicitly put it in a little better context:

Please remember that humanfont went into this saying that even if the sperm donor could legally get out of this, he still "ain't no kind of man", and he's "just a turkey baster with greasy hair who will be forgotten in a junk drawer and replaced with a trip to the dollar store."

Going to a doctor apparently would've legally gotten him out of this. Too fucking bad, pathetic motherfucker with assumedly greasy hair. Man the fuck up, turkey baster.

Going to a doctor apparently would get an egg donor out of it, too. That it's infeasible that an egg donor could avoid going to a doctor is neither here nor there. Too fucking bad, pathetic motherfucker with assumedly greasy hair. Man the fuck up, petri dish.
posted by Flunkie at 5:54 AM on January 3, 2013 [5 favorites]


It seems clear that the intent of the law is in fact to force people to go through a doctor, and if the fees for a doctor are too high, then they need to be waived or minimized.

THIS particular situation seems clear in that the father and mother never had any romantic relationship, but I can think of a hundred different perfectly fine, perfectly moral situations (polyamory, triangles, etc.) that would be incrementally less and less clear, and having a law/procedure in place, even if it is burdensome looks to me like the best way to protect the interests of the child created.
posted by jfwlucy at 6:34 AM on January 3, 2013 [2 favorites]


[Maybe the goal here should not be to struggle and compete to be equal-opportunity about our hyperbolic insulting outbursts? Let's drop the turkey-baster/petri dish line, please and resume having an intelligent conversation. Thanks.]
posted by taz at 6:35 AM on January 3, 2013


but I can think of a hundred different perfectly fine, perfectly moral situations (polyamory, triangles, etc.) that would be incrementally less and less clear

But in those situations, the third parent probably wouldn't have signed a paper saying they weren't the parent.
posted by roomthreeseventeen at 6:41 AM on January 3, 2013 [1 favorite]


So if the break-up was acrimonious, and the non-biological mother was simply refusing to pay (as opposed to being unable to pay, as in this case), leaving the biological mother in the lurch, then Kansas State would not have any recourse to collect money from her? If not, doesn't that mean that Kansas State has effectively made the decision that biological parents are more reliable than gay parents at (re-)paying child support? I am no law maker, but if I was going to put a policy together aimed at minimizing the state's child care costs, I'd be going for the self-declared (and presumably demonstrable) parent over the mere sperm donor any day.

I heard that there was a faster alternate route, and that was for the biological mom to sue the non-biological mom for paternity.


What would happen to the biological father's "responsibility" in such a scenario? Would it be absolved? Or would there be, in effect, three parents?
posted by kisch mokusch at 6:42 AM on January 3, 2013


but I can think of a hundred different perfectly fine, perfectly moral situations (polyamory, triangles, etc.) that would be incrementally less and less clear, and having a law/procedure in place, even if it is burdensome looks to me like the best way to protect the interests of the child created.

Are the consenting adults in the situations you've listed looking to create a child? Is that the goal they set out to accomplish by getting involved with each other? If so, and they have a clear understanding of who is going to parent the child, and they have it written out in a contract, like these adults had, what is the difference?
posted by anthropoid at 7:27 AM on January 3, 2013


Yeah, it seems as if there are a number of failures here, most of them on the part of the State Legislature.

1) If the two women had been married, then presumably they would be the two listed parents of the child, as I know it would be in Canada (and presumably in all of the States where same-sex marriage is a possibility). At this point presumably a clarification of parental law would be necessary just for logistical/administrative purposes - his rights & obligations as a parent would be voided on registration of the birth certs. Done, problem solved.

1a) In the absence of marriage there should still be some civil union/etc thing that allows for parentage. Just the clarification of parental law that would be needed in 1 but without marriage, for example. Then the two women are the two parents, done, problem solved.

2) If there was better health care availability (both in terms of cost and in terms of access), then they could have afforded a doctor to do the procedure / sign off on the procedure. Done, problem solved.

3) Because neither of these things exist, and the women were presumably aware that their relationship was/is not given equal treatment in the eyes of the law, they should have gotten some advice. Lawyer or more likely an LGBT* legal advocacy centre-type place? Presumably they exist and have the best info on these things.

3a) 3 is tricky because essentially the women didn't consider the event of "we break up and have to go on social assistance." Which is both fair enough and a problem at the same time. They need to consider what would happen if they break up. I think that's a given by now.

3b) As I said, the women probably didn't consider the issue of going on social assistance. Most people don't, unfortunately. But even if they had, a quick perusal of the Kansas DCF website doesn't tell me what to do in any situation similar to the parents. I am an apprentice lawyer who works in the social assistance field, so if I can't find it quickly I can't fairly expect anyone to find it at all. DCF needs to have a better FAQ or something that involve adoptive parents, donors, etc. Social Assistance needs to be reactive - if there are common family structures, they need to deal with it.

tl;dr:
So the women screwed up a bit by not thinking about every eventuality and getting serious advice when planning to raise a child. Which is not great. But the State screwed up in a major way by not having this type of advice or info front and centre, not allowing the women to do the obvious steps that would solve this problem (birth cert, marriage), and not funding access to either advice or the required solution to the problem.
posted by Lemurrhea at 7:31 AM on January 3, 2013 [2 favorites]


If there was better health care availability (both in terms of cost and in terms of access), then they could have afforded a doctor to do the procedure / sign off on the procedure. Done, problem solved.

We don't know for sure that they wanted a physician involved in making a babby.
posted by roomthreeseventeen at 7:45 AM on January 3, 2013


As I see it, the only party trying hard to avoid their moral - if not legal - financial responsibility for the welfare of the child is the State of Kansas.
posted by rocket88 at 8:40 AM on January 3, 2013 [11 favorites]


I see the point of the state not recognizing an unenforceable contract. Yes, it should be hard to relinquish parenthood. The law wants to use common sense, but common sense is very difficult to legislate. The biological Dad donated sperm for the specific purpose of making a baby. If he has any fault, it's that he didn't take this seriously enough.

The couple breaks up, and there is no state-imposed responsibility for the non-biological Mom to have financial responsibility. It's not clear to me if they had their own civil contract requiring shared parental rights & responsibilities. I'm familiar with a similar case that generated a lot of legal action when the lesbian couple broke up, and there was no law or precedent for custody and support. If non-biological Mom stepped up and took responsibility, this would not be in court. It's one reason I'm in favor of (and voted successfully for - Yay, Maine!) gay marriage, and equal civil rights *and responsibilities* for gay people. In more than a few same-sex couples I've known, the biological Mom gets food stamps, subsidized housing, and other assistance, and when the child(ren) go to college, aid is based on biological Mom's income. It's a small cost overall, but it's an imbalance.

Hey Kansas, people are gay, and you can't make that go away with a constitutional amendment. By denying the reality that @ 8% of the population is gay, you're making it harder for over 8% of your citizens to live healthy lives, and that includes a well-intentioned guy who wanted to help 2 other people start a family, and a child who needs to be cared for. This is precisely why gay marriage is important; it creates a legal structure to deal with the realities of life. Your intolerance is expensive, and worse, it's hurting people.
posted by theora55 at 9:25 AM on January 3, 2013 [3 favorites]


With all the talk of the notion that the state should consider the legalities to be satisfied just because it's what the parties wanted, regardless of whether they followed any of the legal procedures, I keep thinking of this scene.
posted by The World Famous at 9:47 AM on January 3, 2013


Are the consenting adults in the situations you've listed looking to create a child? Is that the goal they set out to accomplish by getting involved with each other? If so, and they have a clear understanding of who is going to parent the child, and they have it written out in a contract, like these adults had, what is the difference?

The parents cannot just agree between themselves to absolve, even partially, themselves of their parental responsibilities. I think this is reasonable, as long as there are also reasonable ways for the parents to legally do that, which is probably not true in this case. In which case these are the laws that should be changed instead of throwing the baby out with the bathwater and start allowing parents to relinquish their responsibilities willy-nilly.
posted by Authorized User at 10:09 AM on January 3, 2013 [1 favorite]


Are the consenting adults in the situations you've listed looking to create a child? Is that the goal they set out to accomplish by getting involved with each other? If so, and they have a clear understanding of who is going to parent the child, and they have it written out in a contract, like these adults had, what is the difference?
There isn't any. The point is that BECAUSE there are so many different types of situations, having a neutral third party act as an intermediary (lawyer, doctor, whatever) should be a non-negotiable requirement in these matters.
posted by jfwlucy at 10:20 AM on January 3, 2013


I think that birth mothers, egg and sperm donors have an unbreakable biological connection to the offspring created. This connection doesn't create the same obligations as a parent or family who has agreed to raise the child, but the notion that they have no obligations ever under any circumstance doesn't seem right to me. The state and community play their role in assuring the child's general welfare, safety and education; in circumstances where the offspring and his/her family becomes financially destitute why shouldn't the donor bear some costs of raising their offspring? If it was your offspring involved and you knew about it wouldn't you feel some sense of obligation?
posted by humanfont at 10:23 AM on January 3, 2013


If it was your offspring involved and you knew about it wouldn't you feel some sense of obligation?

I wouldn't. Conversely, do blood relations have an entitlement to the profits and copyrights arising out of the work of their cells? Let's ask the Henrietta Lacks family.
posted by toodleydoodley at 10:27 AM on January 3, 2013 [7 favorites]


humanfont, how much experience do you have with people who have had children with the help of donor gametes?
posted by KathrynT at 11:05 AM on January 3, 2013 [3 favorites]


If it was your offspring involved and you knew about it wouldn't you feel some sense of obligation?

It's complex, and different people are going to have different takes on this, because as a society (as opposed to as individuals) we don't have agreed-on notions of what it means to be a dad versus a donor. A biological father versus a father, if you will.

In my case, the biological mom, non-biological mom, and donor dad are all good friends and have shared connections (family and friends) that go back decades. The biological mom and non-biological mom are the parents in everyone's minds (the offspring, the bio mom, the non-bio mom, the donor dad, and everyone's friends and relatives) full stop.

Because everyone involved were essentially already as close as family, live in the same city, and get along well, the bio dad is involved in the kid's life to the extent that a distant uncle would be, and this is fine with everyone.

But I think if the bio dad felt more obligation and acted on it, then it would be pretty hard for all, because it would be usurping the right and role of the non-biological mom, who prior to adopting her child had the most tenuous case under the law for being the child's parent, even though she actually inseminated her partner, was there for the pregnancy, was there for the birth, and raised the infant! Under the law, prior to adoption, the biological dad had more of a right to the child than her, and could have sued for custody.

tl;dr - in this situation, with these people, the biological dad feels kindly towards his biological relations and their parents, but doesn't feel obligation to their kids; he feels supportive of their family.
posted by zippy at 11:06 AM on January 3, 2013 [1 favorite]


I wanted to amend the above. It's not that it's complex, it's that we collectively have so much experience with heterosexual parents having kids, and as a society so little with same-sex parents having kids, that a lot of our notions about what it is to be a parent really only apply to heterosexual parents.

It's the kind of situation where, once you're actually in a relationship or a culture where same-sex parenting is normal and accepted, then you realize those preconceptions don't apply, and worse, applying them is actually incorrect and harmful. From there, a more general and resilient definition of "parent" becomes clear.

In reading that, I apologize if it sounds sanctimonious. It's not meant to be. My own path through this was one of: A) I had not had experience with this and had only thought about it in the abstract, and I kept dwelling on the edge cases, and B) I had experience with it and it was real and normal and of course this is how things work.

The problem with getting to B is that it's hard to accept that we come to it from A with a lot of common sense wisdom that is actually received and unchallenged belief. Seeing it as such and trying to get down to first principles is hard.
posted by zippy at 11:19 AM on January 3, 2013 [1 favorite]


The World Famous: "I'm a lawyer and on more than one occasion I have sent a lease I was about to sign to another lawyer just to get a second set of eyes on it. I've also never (since law school) signed a lease without first becoming familiar with the applicable laws in the jurisdiction and haggling over various provisions."

Ahh, if only we all enjoyed the privilege of being a lawyer and the easy access to free counsel it affords there would hardly be a problem! Unfortunately, this is simply not the case for most people. (Also I find it a bit odious, the degree to which you demand consultation of lawyers, being a lawyer yourself. I might argue (were I interested in chasing an ad hominem thread) that it is attitudes and practices such as your own have engendered the unavigable legal environment we live in today which is utterly hostile to civilians.)

"Spoken like a Supreme Court justice who can't find a precedent to support an argument."

More like a human being who thinks humans are more important than rigid adherence to the law.

How are the people better served by forcing this man to either a) pay to support the child or b) having forced him to pay a doctor to remove his legal status as parent?

Navelgazer: "They probably did not expect that the State of Kansas would become a party to their agreement, or comprehend that the State was, in fact, an unconsulted party at the time the agreement was written and signed, and were just doing what they thought was reasonable and prudent under their circumstances."

People routinely formulate ad hoc contracts. It's kinda the root of the whole human "contract" behavior. Many of these ad hoc contracts are, as I understand it, generally enforceable. Barring any ridiculous abrogation of anyone's rights (i.e. selling the child into slavery), or activities which add even a scent of impropriety (selling a child for money) I truly believe this should be sufficient. The state, in service of the people, should buck up and realize that they're 90% of the way to complying with the law and help them to fill in the blanks (the approximate missing 10% being the involvement of a doctor).

The problem as I see it is that the state is so reticent to provide support to it's citizens that it's representatives are claiming this as an impingement on the state's rights. That the state should claim a stake such as it has in this case is grotesque.

I can't help but think that, had the woman merely disavowed any knowledge of the father's identity, this problem might well vaporize. If this is the case, the law has incentivized dishonesty and little else.

The state exists to support it's citizens -- and while I recognize this is not the principle under which we are presently governed -- it is the ideal I will always support and the position I will always argue from.
posted by Matt Oneiros at 12:50 PM on January 3, 2013 [4 favorites]


Ahh, if only we all enjoyed the privilege of being a lawyer and the easy access to free counsel it affords there would hardly be a problem! Unfortunately, this is simply not the case for most people. (Also I find it a bit odious, the degree to which you demand consultation of lawyers, being a lawyer yourself. I might argue (were I interested in chasing an ad hominem thread) that it is attitudes and practices such as your own have engendered the unavigable legal environment we live in today which is utterly hostile to civilians.)

Would you find me less odious if I were to explain that I do not demand consultation of lawyers, but that I merely suggest that it's a good idea to do so when dealing with legal matters? It would certainly make me more comfortable with our discussion if you wouldn't jump to conclusions about "attitudes and practices such as [my] own" like that.

More like a human being who thinks humans are more important than rigid adherence to the law.

Would you find me less odious if I were to tell you honestly that I agree with you?

How are the people better served by forcing this man to either a) pay to support the child or b) having forced him to pay a doctor to remove his legal status as parent?

They are not. But the question posed to which I responded was whether specific examples given were situations where one is dealing with "legal stuff" where it might be a good idea to seek legal advice or at least find out what laws are relevant to the situation. So tell me this: How would the people have been better served if this man and these women had at the very least attempted to figure out whether or not their written agreement would have the intended legal effect? I can think of plenty of ways, even if they hadn't consulted with a lawyer.

It would be nice if Michael Scott if shouting "I declare bankruptcy!" were sufficient to take care of his financial problems. But I'm sure you can see how having that be the official system for how personal bankruptcy works might cause a few problems. And maybe you can hate me just a little bit less in spite of my profession. What do you think?
posted by The World Famous at 1:22 PM on January 3, 2013


How are the people better served by forcing this man to either a) pay to support the child or b) having forced him to pay a doctor to remove his legal status as parent?

It prevents the unscrupulous from drawing upon state benefits meant for the needy when they could otherwise afford to support a child. That's why.

Were I king of the world, I'd probably a) let this particular case slide b) be more generous in the provisions of social benefit in my kingdom and compell my subjects to pay me sufficient taxes to subsidise such benefits, and c) allow same sex couples to marry, creating a clear public legal marker that would confer obligations to care for the child on the non-biological parent. This is not my kingdom. This is Kansas.

But even in my kingdom -- which is pretty darn sweet, you should visit --- there still exists a law which says "the general rule is that the biological parents of a child are responsible for its care, and can be compelled to provide that care or have their rights to the child revoked if they fail to do so. the exceptions to that rule are few and if you wish them to be recognised you must do these Big Important Public Legal Things." By bell, book and candle. The full monty. It's the only way, because caring for a kid is a big damn responsibility, and it should be made very difficult for assholes to get out if it; there are a lot of assholes in the world. This is also a world in which bad things happen --- people die, love turns sour. The kids are still there.
posted by Diablevert at 1:26 PM on January 3, 2013 [3 favorites]


It is my view that the central question in the Lacks case is as follows: do you and your family have a right to choose how to dispose of your remains after your death? I believe there is a dispute between doctors and the family about when and if consent was granted to use her remains for medical research. That particular issue seems pretty far removed from the obligations of an individual to their offspring.

I also understand the extremely complicated messiness of contact between any donor and the family raising a child. There are deeper questions here, like whats the line between ownership and possession of your children and custody? Is there a fear of abandonment by the child, or the non-biological parent after the entrance of the biological parent. If there are obligations between donor and offspring, are these creating a slippery slope where the donor is compelled into a parenting role?

I think that the obligations are fairly limited for the donor. For example if the offspring needed some genetic history or family information in order to treat an illness; then I think the donor is obligated to provide. This case in Kansas seems like a gray area where the donor's obligations become more uncertain.
posted by humanfont at 1:34 PM on January 3, 2013


If this was upheld, any donor sending their seed to Kansas would be on the hook if the receiver DIYed the insemination. Sperm-jacking MRA FUD codified by law

I still haven't read a convincing argument on why insemination via a medical professional properly indemnifies a donor/receiver as spelled out in agreement from future financial obligations seeing to well being of the child.

What exactly is the mechanism the state is arguing that abdicates their financial obligations because of home insemination? Is the state prepared to layout new liability guidelines for insemination via a donor and parental rights? What is their rational to conclude donor is obligated to refund the state if a doctor is not involved? Warranty, sure but not this.

This whole exercise seems like a headline grabbing attempt to marginalize the rights of same-sex partners and codify second-class claims of LGBT households over the well-being of a child before the Supreme Court rules on something more substantial and binding. Make lesbians feel powerless before the eyes of the law? Check! Claim to save taxpayers money? Check! Burnish conservative credentials of some up-and-coming AG? Maybe?

If someone has an case version of a non-married hetro couple playing out the same way, I'd love to see it. Bottom dollar it doesn't exist.
posted by MiltonRandKalman at 2:13 PM on January 3, 2013


If someone has an case version of a non-married hetro couple playing out the same way, I'd love to see it. Bottom dollar it doesn't exist.

How close of an analogous case are you asking for? In other words, what elements of this case are you looking for in the analogous non-married hetero couple case?

Would your inquiry be satisfied by the existence of a case where a single mother applies for government assistance and the government then asks the biological father to pay child support even though he was never in a relationship with the single mother and even though, at the time she became pregnant, she was dating another guy? Or would there have to also be an unenforceable written agreement for the analogy to work for you?
posted by The World Famous at 2:22 PM on January 3, 2013


The World Famous: The way I read your comment I read it as a list of oughts, that one ought to always consult a lawyer in the hypothetical matters enumerated otherwise they would practically be asking for a gotcha scenario as the trio in question ran afoul of. If this is how you intended it, I do indeed find your attitude odious.

If you merely meant to recognize how the hypothetical scenarios all involve common behaviors but also expose the people involved to a potential legal minefield (by way of saying "yes, it would be wise to consult a lawyer") then we're on the same page.

"Would you find me less odious if I were to tell you honestly that I agree with you?"

Naw. If you're coming from my first interpretation of your comment, it makes you more odious as you're arguing disingenously in favor of a position which you basically disagree with. If you're closer in intent to my second more generous interpretation, then as before, I retract "odious" whatever your specific position regarding this case.

"So tell me this: How would the people have been better served if this man and these women had at the very least attempted to figure out whether or not their written agreement would have the intended legal effect? I can think of plenty of ways, even if they hadn't consulted with a lawyer."

I don't really see how the people are done a disservice by their handling of the matter. Aside from the specifics of Kansas law requiring a doctor as a part to the agreement they seem to've mostly kept close to the track of what needed to be done. Perhaps I lack the requisite creativity to see how they could've acted in a way that is somehow more beneficial to the people (certainly feel free to clue me in -- I'm interested to know what I might be missing) on the balance I see this trio's contract as neutral in effect to the people whereas the state's actions clearly have the potential to be detrimental to the parties involved and society at large.

"It would be nice if Michael Scott if shouting "I declare bankruptcy!" were sufficient to take care of his financial problems."

The problem with that example is that Michael Scott is declaring bankruptcy to the wrong people (his office, not the lenders).

It's fairly apparent that to discharge ones debts the lenders (at the very least!) have a stake. He made no effort to involve other parties which he had good reason to believe needed to be involved. The trio on the other hand attempted to involve everyone they thought had a stake not recognizing that the state claims status as a party to any such agreement.

That clip would be more analogous if Michael Scott had sent a letter saying "dear lending sirs, I have no money." with all his financial details attached proving he had no money.

"But I'm sure you can see how having that be the official system for how personal bankruptcy works might cause a few problems."

Sure, but I don't see it as being suitably analogous to this situation.

"And maybe you can hate me just a little bit less in spite of my profession. What do you think?

I don't hate lawyers. I hate the exploitative in all trades. A locksmith who replaces a repairable lock to bill higher or a lawyer who contributes to legislation which makes it increasingly difficult for citizens to conduct their lives without constant costly counsel -- it's all the same to me.

If I have a distaste for you (which remains to be seen) it would only be due to self/lawyer-serving demands in relation to your vocation (a behavior of hucksters in any trade).

Diablevert: "It prevents the unscrupulous from drawing upon state benefits meant for the needy when they could otherwise afford to support a child. That's why."

This is the specter raised by conservatives in response to anyone collecting benefits. I have yet to see evidence of the endemic trailer-dwelling Cadillac-driving welfare moms of Reagan lore, and so it's hard to take this reasoning seriously as anything but the ordinary right-wing falderal.

It's not as if this man signed a document saying something like "I HEREBY DISCHARGE ALL RESPONSIBILITY FOR THIS CHILD IN PERPETUITY" and now no one is willing to claim responsibility for the child and the state is left holding the tab. Rather, he attempted to enter into a contract wherein another party intended to fully assume his ordinary parental duties (and by all accounts, has). If this man were on disability, as the woman who assumed his responsibilities is, there'd be no problem.

"This is also a world in which bad things happen --- people die, love turns sour. The kids are still there."

Having the genetic father, and not one of the mothers, held responsible doesn't change any of this or insulate the kids any special way. Having this fellow raise the child in ten years when both the moms are killed in a car crash is not magically made tenable via his genetic relation.
posted by Matt Oneiros at 2:26 PM on January 3, 2013


What I have not seen anyone other than Schmod (and I've only seen a few responses) point out is that it is likely that the lesbian couple in question would not have been able to get a doctor to do fertility treatments. It can be difficult to find in states where we have legal protection. In states that do not even have equal rights clauses for gays? Forget about getting equal medical treatment -- much less anything involving children (gasp!)

For that reason alone -- this is very much a gay rights issue.
posted by Librarygeek at 2:28 PM on January 3, 2013 [6 favorites]


What exactly is the mechanism the state is arguing that abdicates their financial obligations because of home insemination? Is the state prepared to layout new liability guidelines for insemination via a donor and parental rights? What is their rational to conclude donor is obligated to refund the state if a doctor is not involved? Warranty, sure but not this.

It legitimizes it. The doctor is a third party who certifies that it was a medical procedure and not just some guy agreeing to give up his parental rights. The same way you can't just adopt a baby on the street. You have to go through proper channels.

Because the basis of the law is that the support of the parents is a right that belongs to the child, which cannot be abdicated. And that, like it or not, the contributors of the DNA are legally the responsible parties for that child's support. Unless the proper legal procedures are followed.

So this really IS a same sex marriage issue. Had same-sex marriage been legal, the baby could have been born with the donor as the father (with insemination done any way they wanted to), and then the other partner could adopt the child legally, and everyone would be happy.
posted by gjc at 2:33 PM on January 3, 2013 [1 favorite]


MiltonRandKalman: here's a story of an unmarried, hetero couple wherein the woman allegedly misappropriated her boyfriends sperm resulting in a pregnancy and obligating him to pay child support: Dad claims twins came from sperm stolen by ex-girlfriend.

I recall a similar case in the 90s and googling for "stolen sperm" and similar phrases seems to find a number of similarly themed situations.
posted by Matt Oneiros at 2:36 PM on January 3, 2013


How close of an analogous case are you asking for?

Non-married hetro couple in Kansas reach out for a sperm donation because they can't conceive on their own; donor abides with a similar agreement and said couple save a few bucks and baste in the comfort of home. Couple split, mother falls on hard times and applies for benefits. State ignores the common law parentage of the non-bio father and goes after the donor instead simply because a doctor wasn't involved.

Would your inquiry be satisfied by the existence of a case...he was never in a relationship with the single mother and even though, at the time she became pregnant, she was dating another guy?

No, the agreement shows intent from both women (carrier and non-carrier) to act as parent/guardian to the child. A hetro couple that wasn't married (for whatever reason) but wanted to raise a child via sperm donation also have the intent of raising that child as if they were the biological parents with all right and responsibilities the state affords if they did conceived the old fashion way.

The state is ignoring intent of the lesbian couple and throwing out the agreement because otherwise they would have to recognize the value in treating same-sex parentage as equal to an arrangement made between heterosexual partners. But they won't because they are shitlords.
posted by MiltonRandKalman at 2:38 PM on January 3, 2013 [3 favorites]


"If someone has an case version of a non-married hetro couple playing out the same way, I'd love to see it. Bottom dollar it doesn't exist."

How close of an analogous case are you asking for? In other words, what elements of this case are you looking for in the analogous non-married hetero couple case?

Would your inquiry be satisfied by the existence of a case where a single mother applies for government assistance and the government then asks the biological father to pay child support even though he was never in a relationship with the single mother and even though, at the time she became pregnant, she was dating another guy? Or would there have to also be an unenforceable written agreement for the analogy to work for you?


That happens ALL THE TIME. That's a good portion of what the state's child support lawyers do- try to find the biological father and make him pay child support.
posted by gjc at 2:39 PM on January 3, 2013 [2 favorites]


It legitimizes it. The doctor is a third party who certifies that it was a medical procedure and not just some guy agreeing to give up his parental rights.

The agreement between the parties has the donor surrendering rights, and the couple assuming all responsibility doesn't speak to the method of delivery. What's the state rational, as an unwilling third-party, to say they will honor the agreement and not seek reimbursement simply because a doctor used a syringe?

I don't think they have one. I'm convinced they are using a loophole to make LGBT couples feel like they have no rights under the law.
posted by MiltonRandKalman at 2:45 PM on January 3, 2013 [2 favorites]


This is the specter raised by conservatives in response to anyone collecting benefits. I have yet to see evidence of the endemic trailer-dwelling Cadillac-driving welfare moms of Reagan lore, and so it's hard to take this reasoning seriously as anything but the ordinary right-wing falderal.

I'm not defending conservatives or any of that, but go hang around a welfare office parking lot and tell me there isn't some of that going on. (Note: I am not judging or condemning. Nobody walks into or out of a welfare office with a "I got mine" grin and a sack of money. But the laws that say parents ought to have assistance if they need it also (usually) say that the state has to try to get both parents to contribute.

It's not as if this man signed a document saying something like "I HEREBY DISCHARGE ALL RESPONSIBILITY FOR THIS CHILD IN PERPETUITY" and now no one is willing to claim responsibility for the child and the state is left holding the tab. Rather, he attempted to enter into a contract wherein another party intended to fully assume his ordinary parental duties (and by all accounts, has). If this man were on disability, as the woman who assumed his responsibilities is, there'd be no problem.

That's not a contract the state allows people to enter into without going through an intermediary- either a doctor for artificial insemination, or via adoption.
posted by gjc at 2:50 PM on January 3, 2013


Non-married hetro couple in Kansas reach out for a sperm donation because they can't conceive on their own; donor abides with a similar agreement and said couple save a few bucks and baste in the comfort of home. Couple split, mother falls on hard times and applies for benefits. State ignores the common law parentage of the non-bio father and goes after the donor instead simply because a doctor wasn't involved.

The system allows the mother to write her non-spousal male co-habitant down as the "father" of the child on the birth certificate. DNA isn't checked for paternity unless the father challenges and IIRC challenges can only be conducted under specific circumstances. So yeah hetro-couples get all the breaks.
posted by humanfont at 2:51 PM on January 3, 2013 [1 favorite]


If this is how you intended it, I do indeed find your attitude odious.

That is not how I intended it.

If you merely meant to recognize how the hypothetical scenarios all involve common behaviors but also expose the people involved to a potential legal minefield (by way of saying "yes, it would be wise to consult a lawyer") then we're on the same page.

We're on the same page.

The problem with that example is that Michael Scott is declaring bankruptcy to the wrong people (his office, not the lenders).

It's fairly apparent that to discharge ones debts the lenders (at the very least!) have a stake. He made no effort to involve other parties which he had good reason to believe needed to be involved. The trio on the other hand attempted to involve everyone they thought had a stake not recognizing that the state claims status as a party to any such agreement.


It's fairly apparent here that the State of Kansas, which is being asked to pay money to support the child, also has a stake.

It's not as if this man signed a document saying something like "I HEREBY DISCHARGE ALL RESPONSIBILITY FOR THIS CHILD IN PERPETUITY" and now no one is willing to claim responsibility for the child and the state is left holding the tab.

I must be understanding the situation different from you, then, because I was under the impression that that was exactly what's happening here, with the sole difference being that two other people who also have no authority to discharge his responsibility having signed that same document.

Rather, he attempted to enter into a contract wherein another party intended to fully assume his ordinary parental duties (and by all accounts, has).

Right, but he didn't enter into the right party for such a contract to be binding. The necessary party with whom he could contract to waive parental rights was, apparently, the State of Kansas.

If this man were on disability, as the woman who assumed his responsibilities is, there'd be no problem.

Really? In what way? Just that he would be unable to pay, right?

The state is ignoring intent of the lesbian couple and throwing out the agreement because otherwise they would have to recognize the value in treating same-sex parentage as equal to an arrangement made between heterosexual partners. But they won't because they are shitlords.

Give the state more credit, please. It's not just doing it because it hates same-sex couples. It's doing it because it hates same-sex couples and because it doesn't like giving people money.
posted by The World Famous at 2:55 PM on January 3, 2013 [1 favorite]


Here's a story of an unmarried, hetero couple wherein the woman allegedly misappropriated her boyfriends sperm resulting in a pregnancy and obligating him to pay child support: Dad claims twins came from sperm stolen by ex-girlfriend.

That's not what I'm talking about.

Imagine two hetro non-married couples using the same exact agreement the lesbian couple, except they crossed out the names and filled in their own. Both find a sperm donor, they all sign, cup is delivered

The first couple used a doctor and the second couple DIYed. Everyone gets happy pregnant. Both couples split, both mothers fall on hard times and apply for benefits. In the first 'doctor' couple the state says, "Your agreement is totally legit, donor is free and clear and we will pay your benefits and go after 'dad'. Second 'at-home' couple , the state says, "You're agreement is revoked, forget 'dad' we're going after the donor instead." NEVER FUCKING HAPPENING.

That's not a contract the state allows people to enter into without going through an intermediary- either a doctor for artificial insemination,

Doctor's don't enforce liabilities and warranties between to consenting parties. But according to the state, only a doctor's syringe makes this agreement binding, not their lawyers and signatures. I'm anxious to see what story the AG is going to weave justifying the state's rationale for nullifying the agreement beyond, 'gay parents don't count'.
posted by MiltonRandKalman at 3:02 PM on January 3, 2013


The agreement between the parties has the donor surrendering rights, and the couple assuming all responsibility doesn't speak to the method of delivery. What's the state rational, as an unwilling third-party, to say they will honor the agreement and not seek reimbursement simply because a doctor used a syringe?

I don't think they have one. I'm convinced they are using a loophole to make LGBT couples feel like they have no rights under the law.


Because the law says you can't surrender a responsibility. Men have the responsibility to provide for children they have fathered. The law only allows a couple of loopholes to this: adoption and artificial insemination. Neither of which you are allowed to do-it-yourself, because the state's responsibility is to the child, and the state needs to make sure it's on the up and up.

I don't think the state is doing this to stick it to LGBT people, rather that they are following the law as they are required to do. All children have a right to be supported, and the state is the provider of last resort. They are required by law to try and ferret out who the legally responsible parties are before coughing up the state's money.

It's not this case that is sticking to to LGBT people, it is the fact that LGBT people aren't allowed to marry. This case is a corner-case to that main issue.
posted by gjc at 3:07 PM on January 3, 2013 [3 favorites]


Imagine two hetro non-married couples using the same exact agreement the lesbian couple, except they crossed out the names and filled in their own. Both find a sperm donor, they all sign, cup is delivered

The first couple used a doctor and the second couple DIYed. Everyone gets happy pregnant. Both couples split, both mothers fall on hard times and apply for benefits. In the first 'doctor' couple the state says, "Your agreement is totally legit, donor is free and clear and we will pay your benefits and go after 'dad'. Second 'at-home' couple , the state says, "You're agreement is revoked, forget 'dad' we're going after the donor instead." NEVER FUCKING HAPPENING.


Hm. See, what I imagine is that when the single mother with the unenforceable contract asks for state assistance, there's a line on the form asking who the biological father of the child is and she either lies on the form and her ex is on the hook for child support or she tells the truth and the sperm donor is on the hook for child support. Why wouldn't that be the case? You put "NEVER FUCKING HAPPENING" in all caps like doing that gives the assertion legal weight or something, but I assure you it does not.
posted by The World Famous at 3:07 PM on January 3, 2013 [2 favorites]


Doctor's don't enforce liabilities and warranties between to consenting parties. But according to the state, only a doctor's syringe makes this agreement binding, not their lawyers and signatures. I'm anxious to see what story the AG is going to weave justifying the state's rationale for nullifying the agreement beyond, 'gay parents don't count'.

Can you tell me what, exactly, the Kansas law you're referring to says? I have a feeling we're letting the discussion go pretty far afield by taking huge liberties with what, exactly, the law is.
posted by The World Famous at 3:08 PM on January 3, 2013


her ex is on the hook for child support or she tells the truth and the sperm donor is on the hook for child support. Why wouldn't that be the case?

You're going to argue that the state would assign interest to the sperm donor all parties agree surrendered responsibility over a common law husband?

Can you tell me what, exactly, the Kansas law you're referring to says?


The state contends the agreement between Marotta and the women is not valid because Kansas law requires a licensed physician to perform artificial insemination.

"Speaking generally, all individuals who apply for taxpayer-funded benefits through DCF are asked to cooperate with child support enforcement efforts," Angela de Rocha, a spokeswoman for the Kansas Department for Children and Families, said in a statement. "If a sperm donor makes his contribution through a licensed physician and a child is conceived, the donor is held harmless under state statue. In cases where the parties do not go through a physician or a clinic, there remains the question of who actually is the father of a child or children.

Now that would seem completely legitimate if there was no pre-existing agreement but there is one. The state doesn't seem to want to acknowledge over-riding intent simply because it was a DIY insemination. This stance opens up a whole can of worms in terms of control over non-traditional pregnancy, rights of parents, donors, state discretion to honor legal documents.
posted by MiltonRandKalman at 3:19 PM on January 3, 2013


It should be the Kansas Parentage Act, which explicitly removes paternity for men who donate semen to a doctor, and does not do so for men who give semen directly to women: " (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. ".

For the hetero couple, there are a lot of ways the partner can be presumed the father without ever saying that he was the provider of sperm, so it should be legally reasonalbe for the woman to write him down as the father (I'd be surprised if the form asks for 'biological father', seems way too progressive).
posted by jacalata at 3:24 PM on January 3, 2013 [1 favorite]


You're going to argue that the state would assign interest to the sperm donor all parties agree surrendered responsibility over a common law husband?

I'm not a Kansas lawyer, so all I have to go on at the moment is what's happening under Kansas law in the present case. You appear to have some undisclosed legal insight into the operations of Kansas law in cases like these, which is why I asked you "why wouldn't that be the case?"

jacalata has now provided the language of the Kansas Parentage Act, which does shed some light on the subject. Reading the full language of the statute might be a good idea before arguing about it. Based on a quick reading, it looks to me like, under Kansas law, the donor in the present case is legally the father, regardless of the agreement he entered into with the couple, and without regard to whether or not the couple are a same-sex couple.

Instead of arguing about who is right about Kansas law, what do you say we look at the statute and see if we can craft a colorable legal argument based on the statutory language as to why Marotta should not legally be considered the father? I'll let you go first unless I can come up with something before you post. So far, I've got nothing.
posted by The World Famous at 3:31 PM on January 3, 2013


The first couple used a doctor and the second couple DIYed. Everyone gets happy pregnant. Both couples split, both mothers fall on hard times and apply for benefits. In the first 'doctor' couple the state says, "Your agreement is totally legit, donor is free and clear and we will pay your benefits and go after 'dad'. Second 'at-home' couple , the state says, "You're agreement is revoked, forget 'dad' we're going after the donor instead." NEVER FUCKING HAPPENING.

They aren't revoking the agreement, because it was never valid in the first place. In the first case, you have three people who followed the law, and the law respects that. The second group of people did not follow the law, and as such the state has no choice but to use the existing rules in place for determining parentage/responsibility. They are going to follow the money, as it were, until they reach a legal barrier. There is one in the first example, there isn't in the second.

Also, it's not the doctor's syringe that "sanctifies" the agreement. That is reducing it to absurdity. The law says these agreements are invalid, and the only valid way a man can donate sperm without incurring parental responsibility is through the process of going to a fertility clinic, filling out all the correct paperwork and having a doctor perform the procedure.

The state cannot acknowledge the agreement or the intent of the people involved, because that is irrelevant. It is not and never was a legal contract. And further, the state is not a party TO that contract. The only way they become a party to such a "contract" is if the sperm donation is done the way they say it has to be done.

Think of it like this: Jane owns a house with a mortgage lien. Jane and Mary enter into a contract whereby Mary says she will take over payments of the mortgage and live in the house. Mary stops making the payments. Who is the bank going to come after? Jane, of course. They don't care who Mary is or what she agreed to, all they know is that Jane owes them money. In this case, the state is the bank, and the sperm donor is Jane.
posted by gjc at 3:46 PM on January 3, 2013


Instead of arguing about who is right about Kansas law, what do you say we look at the statute and see if we can craft a colorable legal argument based on the statutory language as to why Marotta should not legally be considered the father?

Well that's the sticky point. Kansas won't recognize Angela Bauer as a common law parent who should be paying, not Marotta. In a just world, Marotta would be free and clear regardless of the delivery system and Kansas would treat Angela Bauer and Jennifer Schreiner the same as any other common Hetro law couple who needed assistance. The state assigned responsibility to Marotta because the couple didn't go to the doctor.

So lets take the Kansas position farther. Some sperm banks offer mail order sperm. Does Kansas insist every single male who's donated at a sperm bank liable for child support simply because the customer choose to inseminate at home instead of using a doctor?

The donor can choose to remain anonymous or make their name available to the recipient when the donating, so can the state compel the applicant to disclose the name of some investment banker in Wyoming as the 'father' when they need state assistance?

I'm just perplexed on why Kansas is choosing to take this stance as it would strike terror in the hearts of any male who's ever donated sperm. Any understanding of release of liability is now moot if the woman chooses inseminate at home instead of a clinic.
posted by MiltonRandKalman at 3:53 PM on January 3, 2013


Does Kansas insist every single male who's donated at a sperm bank liable for child support simply because the customer choose to inseminate at home instead of using a doctor?

Is it possible for a sperm bank to be run without a responsible physician? I am assuming that it is not, so this is a straw man option. The relevant act is that the man gives the sperm to a doctor and not to a woman - from reading the statute, it seems not to affect the legal standing if the doctor then gives it to the woman to go home and diy with.
posted by jacalata at 3:59 PM on January 3, 2013 [2 favorites]


The World Famous: "It's fairly apparent here that the State of Kansas, which is being asked to pay money to support the child, also has a stake."

Sure, but a rather less imminent stake than Michael Scott's lenders at the time of the agreement between the parents. It's quite conceivable that Kansas' stake might never have mattered, lots of people go through life without collecting public assistance (the one case where it seems to become significant). Of the parties with the most imminent and apparent stake, all were included (except the kid).

"I must be understanding the situation different from you, then, because I was under the impression that that was exactly what's happening here, with the sole difference being that two other people who also have no authority to discharge his responsibility having signed that same document."

In my reading of it, of the three people party to the agreement one discharged his responsibilities to a surrogate. The biological mother is included as a signatory, presumably, to verify this isn't some sort of sheisty business on the part of the bio-father and the mother taking over his responsibilities.

Does it work under Kansas law? Quite possibly not.

Does their approach make a modicum of sense in spite of their failure to include the fourth parent (the state of Kansas)? I think so.

"The necessary party with whom he could contract to waive parental rights was, apparently, the State of Kansas."

Yeah, apparently! It's kinda counterintuitive though, and short of going straight back to the "well they should have consulted a lawyer" position, I can see how this all could contain a bunch of blinds for the involved parties that don't necessarily benefit them/child/state all that much.

"Really? In what way? Just that he would be unable to pay, right?"

Yeah, that's pretty much what I mean. Had he not attempted to discharge his responsibilities, or was otherwise a conventional father to the child, and was on disability it all becomes clear cut. The kid'd get it's benefits and the state'd have no leverage to try to get someone else to pay.

gjc: "I'm not defending conservatives or any of that, but go hang around a welfare office parking lot and tell me there isn't some of that going on."

I've spent enough time working with the poor, observing my chronically underemployed peers and reading sociological studies to tell you: it isn't that simple.
posted by Matt Oneiros at 3:59 PM on January 3, 2013 [1 favorite]


Is it possible for a sperm bank to be run without a responsible physician? I am assuming that it is not, so this is a straw man option.

There are sperm banks that offer DIY options in California. They even offer free 'refills' if you don't succeed the first time. I would hope sperm banks in Kansas don't do this, otherwise they are opening up their donor to a world of pain. But if a out-of-state bank didn't know about Kansas law and shipped to a customer, what then?
posted by MiltonRandKalman at 4:04 PM on January 3, 2013


No - that's DIY use of the sperm, not DIY donation. Again, the statute language deals with how the man hands over the sperm, not how the woman uses it.
posted by jacalata at 4:12 PM on January 3, 2013


MiltonRandKalman, I think what jacalata is getting at is that it doesn't matter what the sperm bank does after receiving sperm. As long as he gives it under the supervision of a doctor*, he's not the father. Whether it's shipped or not.

The only scenario where your problem might arise is if there's a clinic out-of-state that doesn't operate in such a way as to be recognized by the Kansas law. But I would be very surprised if "licensed" in the law doesn't have a reference back to out-of-state doctors just needing to be licensed in the state in which the donation happened. So then the only way it happens is if you have a clinic that doesn't have a licensed doctor "in charge".

Frankly, if you're going to a clinic which has no doctor, even a nominal head, you probably shouldn't be surprised if sketchy things are happening. Because that sounds like a fly-by-night scam to me.

*...you know what I mean.
posted by Lemurrhea at 4:12 PM on January 3, 2013


Regardless of whether or not the baby was made with the help of a doctor, I wonder if this could have still been worked out if the biomother's partner had been able to jointly adopt the child (using a step-parent adoption). The main problem is that it's apparently not clear that this is allowed in Kansas, and to make it work you would apparently have to show in court that it was "in the child's best interest". In a state that explicitly forbids gay unions of any kind, that's going to be tough.
posted by en forme de poire at 4:19 PM on January 3, 2013 [1 favorite]


No - that's DIY use of the sperm, not DIY donation.

I now understand the distinction. It still bothers me simply because he flogged the dolphin at home instead of a sexy, sexy hospital he being asked to pay. He should file a complaint against his lawyer for allowing such a thing to happen.
posted by MiltonRandKalman at 4:29 PM on January 3, 2013


Well that's the sticky point. Kansas won't recognize Angela Bauer as a common law parent who should be paying, not Marotta.

What part of the statute are you looking at for the premise that, if Bauer had been recognized as a common law wife before the couple split, Marotta would no longer be considered a legal father? I'm not seeing it.

The state assigned responsibility to Marotta because the couple didn't go to the doctor.

Not according to Kansas law, no. Marotta is the father because he did not provide the semen to a licensed physician in compliance with K.S.A. section 38-1114(f). Kansas law has a rebuttable presumption of paternity, and Marotta did not take the necessary legal steps to rebut the presumption. I see nothing in the statute to suggest that the presumption would be rebutted if the biological mother were married to someone other than Marotta, common-law or otherwise. But again, if I'm missing something in the actual statute, please show me.

So lets take the Kansas position farther. Some sperm banks offer mail order sperm. Does Kansas insist every single male who's donated at a sperm bank liable for child support simply because the customer choose to inseminate at home instead of using a doctor?

As I read the statute, the presumption is rebutted by the donor having provided the semen to a licensed physician, not by the location or method of insemination.

The donor can choose to remain anonymous or make their name available to the recipient when the donating, so can the state compel the applicant to disclose the name of some investment banker in Wyoming as the 'father' when they need state assistance?

I see no reason why it couldn't. But I'm not a Kansas lawyer and I'm just looking at the question cursorily.

I'm just perplexed on why Kansas is choosing to take this stance as it would strike terror in the hearts of any male who's ever donated sperm.

You mean any male who's ever donated sperm to someone other than a licensed physician, in which case, yeah, those guys should damned well be scared.

Matt Oneiros: In my reading of it, of the three people party to the agreement one discharged his responsibilities to a surrogate.

Indeed, but not his responsibilities to the child, which are governed by state law and not by the wishes of the parties. Under Kansas law, it appears that even the state of Kansas cannot enter into such a contract, since the only way to rebut the presumption appears to be to hand the cup of semen to a doctor instead of handing it to the mother-to-be.
posted by The World Famous at 4:29 PM on January 3, 2013 [2 favorites]


I see nothing in the statute to suggest that the presumption would be rebutted if the biological mother were married to someone other than Marotta, common-law or otherwise. But again, if I'm missing something in the actual statute, please show me.

Well, according to the statute one presumption of paternity can be made by being married to a man and having him acknowledge the child as his own. So if she were married to one man and pregnant by another, they would both have a presumption of paternity (although the donors would be non-obvious so probably wouldn't be brought up unless someone pushed it, whereas in the case of two women it is obvious that the donor exists), and it says that in the case of multiple presumptions it will be resolved according to greater policy and the interests of the child - you might need to look at case law to see whether the official partner usually gets this over the biological father. If the women could have been married, that still might not quite sort out the paternity here because the statute is written in such a gender specific way - beyond my legal non-expertise to tell.
posted by jacalata at 4:40 PM on January 3, 2013


I see nothing in the statute to suggest that the presumption would be rebutted if the biological mother were married to someone other than Marotta, common-law or otherwise

See that's what gnawing at me, the position of the of state seems to be biology trumps the well-being of the child. If the state really professed its action was in the interest of the child it would assign liability to the common-law father or (in a more enlightened world) same-sex guardian. The state says someone who jerked off into a cup (with doctor or otherwise) should be more responsible than someone who acted as a de-facto parent flies in the face of logic, and I would hope established family case law.

Maybe its a no win situation for the state. Going after Baurer might establish the value of forcing a same-sex parent to acknowledge their responsibility the upbringing regardless of how many chromosomes they contributed.
posted by MiltonRandKalman at 4:56 PM on January 3, 2013


Yeah, I'm with jacalata. If the couple were married, then there should be multiple presumptions. Best interests of the child and "policy and logic" would likely lead to the donor being a non-parent.

Of course, in that scenario we wouldn't need to rely on presumptions, hopefully. The birth mother is automatically a parent, and her partner could seemingly acknowledge the child at the hospital, or afterwards.

This is what I mentioned above about logistics - the statute needs a major overhaul to deal with same-sex parents. This is why it always takes a long time after same-sex marriage is passed or ordered to come into effect.

I think if we're trying to guess what would be the outcome if the couple had been able to marry, we can't rely on the statute as written because so much would have changed.
posted by Lemurrhea at 5:13 PM on January 3, 2013 [1 favorite]


What's bugging me more and more about both of the linked articles and about this case generally is that, according to the HuffPo story, the State of Kansas already paid and will presumably continue to pay, regardless of whether Marotta pays the state what it says he owes. It appears that the reason neither of the mothers is quoted in either article is that neither of them has a dog in the fight: They applied for child support and they got child support, and now the state is going after Marotta to reimburse it to the tune of $6000.

MiltonRandKalman: See that's what gnawing at me, the position of the of state seems to be biology trumps the well-being of the child.

Except that the state already paid, without regard to whether or not it could get Marotta or anyone else to pay up. And the statute expressly resolves conflicts of paternity by considering the best interests of the child. The state has not denied coverage on the basis of the couple being same-sex or on any other basis. According to HuffPo, the state has already paid and will continue to pay, and it's looking to the legally-presumed father for reimbursement.
posted by The World Famous at 5:14 PM on January 3, 2013 [2 favorites]


I mean the titles of the articles are "Sperm donor fights paying child support to lesbian couple" and "William Marotta, Kansas Sperm Donor To Lesbian Couple, Fighting Child Support Payments" not "Lesbian Couple Fights To Get Child Support From State."
posted by The World Famous at 5:16 PM on January 3, 2013


the State of Kansas already paid and will presumably continue to pay

I'm referring to rights and responsibilities a parent or guardian would enjoy or be imposed upon, beyond owing the state a few thousand dollars.
posted by MiltonRandKalman at 5:30 PM on January 3, 2013


I'm referring to rights and responsibilities a parent or guardian would enjoy or be imposed upon, beyond owing the state a few thousand dollars.

I don't understand. You said that the position of the state seems to be biology trumps the well-being of the child. But the statute expressly says that the well-being of the child is the consideration that resolves conflicts, and the state in this case paid child support in the interest of the child before it even worried about whether or not Marotta or anyone else could reimburse it. The well-being of the child seems to have come first here. The state's position seems to be that the well-being of the child is so important that it will go after everyone for child support, regardless of whether they are biologically related to the child.

I agree that it might be a good idea for Kansas to amend section 38-1114 by changing the word "man" to "person" and "father" to "parent," such that the state could go after a female non-biological mother in the same way that the law sets it up to go after a male non-biological father. But I don't see anyone saying that, in the present case, the State of Kansas should be going after Bauer in addition to Marotta, which is what I think would happen if Bauer were a man, given that Bauer is apparently suffering from an illness that prevents her from working. If Bauer were a man and the state went after both her and Marotta for child support reimbursement, I would expect the conflict in presumptions to be determined under 38-1114(c), where the best interests of the child and the "weightier considerations of policy and logic" apply. I think a court decision in that case would be too close to call, since in a case where the question is who the father is for the purpose of the privileges of parenthood, I think the best interests of the child would be in favor of Bauer as the parent, whereas in a case where the question is who is obligated to pay child support, I think the best interests of the child would be in favor of whoever is most likely to actually pay.

But either way, the fact is that in this case, the state appears to have put the child's interests above all else at least on the question of whether or not to pay child support in the first place, regardless of the identity of the parents. So yay!
posted by The World Famous at 5:54 PM on January 3, 2013


$6000 is a fairly low price to pay for participating in sexual reproduction. I mean consider what other organisms of the same species pay.
posted by humanfont at 6:46 PM on January 3, 2013


humanfont: $6000 is a fairly low price to pay for participating in sexual reproduction. I mean consider what other organisms of the same species pay.

And, on the other hand, a fairly high bar for the couple in question, given that heterosexual couples get to participate in sexual reproduction without these extra fees (and in the case of the male of the species, with free bonus orgasm guaranteed!).
posted by Archelaus at 6:56 PM on January 3, 2013


What do you mean extra fees? $6000 won't even cover the prenatal and delivery expenses, much less day care, diapers and the rest. This guy in Kansas didn't have to pay for any of that or suffer any health consequences from child rearing. He gets to write a check to the state for $6000 and perhaps ends up with some child support costs until the moms get back on their feet financially. As an organism he has reserved a very large amount of energy and resources to reproduce with another partner should he so choose, thus further increasing his genes' chances of continued survival.
posted by humanfont at 7:44 PM on January 3, 2013


Ah, so the 'organisms of the same species' = 'people suffering under the US healthcare system'?
posted by pompomtom at 8:33 PM on January 3, 2013


It really is unfortunate that the state is going after Marotta for reimbursement. It's unfortunate that, though he can apparently afford legal counsel to fight now, he either couldn't afford it or simply decided not to get it when he was deciding that he didn't need to find out whether or not the written agreement he and the couple made up would have the desired legal effect under Kansas law.

But I think it's important to realize in this particular case that it appears that the State of Kansas in this particular case is not withholding support from the mother and child. Marotta is not on the hook because the couple to whom he donated was a same-sex couple. And that couple are apparently not negatively impacted by it at all, except to the extent that they had to decline to talk to reporters who called them for comment on the situation.

Kansas (and most of the rest of the country) has a long, long way to go before it gets anywhere near equality and fairness for same-sex couples. But it really is nice to see that, in this case, anyway, the state seems to have put the best interests of the child first and did not let bigotry stand in the way of providing the service.
posted by The World Famous at 9:13 PM on January 3, 2013


And that couple are apparently not negatively impacted by it at all, except to the extent that they had to decline to talk to reporters who called them for comment on the situation.

I can think of several ways that the parents were likely negatively impacted by this, beyond having to decline to talk to reporters. 1) They now have perhaps tens of thousands of half-informed people thinking they're trying to scam the state (we had to work through that idea in this thread, many other communities won't get to the 'work through' stage), 2) they have the emotional burden of having drawn their friend and donor into a conflict with the state, 3) the entire world knows who the donor dad is, whether the parents wanted it known or not, 4) the state has, through its action, emphasized the potentially tenuous claim to parenthood that the non-biological mother has, 5) and once you're in the state's and media's sights, who knows what other issues someone is going to dig for.

Oh, and the entire world knows they're not heterosexual, whether they wanted the entire world to know that or not.

In short, they've gone through, and probably will continue to go through, a gauntlet that a heterosexual couple would not have to face.
posted by zippy at 1:54 AM on January 4, 2013 [4 favorites]


Straight people wrote these laws. Queers have been making families like this for ever and a day, and it shouldn't be a question of waiting until the lawmakers decide to recognise this social reality. All the institutions of legal sperm donation - medicalisation, anonymity as the default option, health checks for the donor et cetera - were built around a model of a hetero couple where the man is infertile. Same-sex couples are not suffering from medical infertility; they have a legal problem, not a medical problem. This is one of our ways of making families: you can fume all you like about what is or is not legitimate, it is how we do it. Insemination by a known donor is not a medical procedure any more than a particularly crappy and unsatisfying act of babymaker sex is a medical procedure. I don't have kids - I don't even know if I want kids - but I know that if I do I don't want a bunch of doctors pointlessly involved, any more than I want to get married* in a hospital clinic after having undergone an internal exam. This issue more than almost all others makes me feel like an exile in my own country.

*"Civil partnered", I do love living in bunny-ear land.
posted by Acheman at 4:48 AM on January 4, 2013 [6 favorites]


Same-sex couples are not suffering from medical infertility; they have a legal problem, not a medical problem.

I completely agree with this. And it should be solved preferably by allowing gay couples to marry and extend the assumption of parentage that way or by allowing the legal transfer of parental responsibilities from the biological father to the partner by adoption. This should not be solved by legitimating private contracts transferring parental responsibilities. That would be opening a whole new can of worms that does not need to be opened for gay people to be able to be the legal parents of the children in their family. Which they obviously should be.
posted by Authorized User at 6:10 AM on January 4, 2013


I completely agree with this. And it should be solved preferably by allowing gay couples to marry and extend the assumption of parentage that way or by allowing the legal transfer of parental responsibilities from the biological father to the partner by adoption.

Under the Kansas statute, that wouldn't necessarily get Marotta off the hook, since he did not take the required step to rebut the presumption of paternity. It would create conflicting presumptions that would have to be resolved by the court. As I noted above, I think non-biological mother in this case would probably be deemed the parent in a case regarding custody, but in a case like this one that is about ability to financially support the child, I think it would be a closer call.

Kansas law needs to change, yes. But the biggest problem Marotta has in the present case is not Kansas law with regard to same-sex couples, but Kansas law with respect to sperm donors who do not hand the cup to a doctor.
posted by The World Famous at 8:53 AM on January 4, 2013


Under the Kansas statute, that wouldn't necessarily get Marotta off the hook, since he did not take the required step to rebut the presumption of paternity.

Well the presumption of "paternity" would be on the other party of the marriage, not on Marotta.
posted by Authorized User at 10:42 AM on January 4, 2013


Well the presumption of "paternity" would be on the other party of the marriage, not on Marotta.

Under the statute, the presumption of paternity would be on both Bauer and Marotta. The statute then has a specific mechanism for resolving a situation where there are two presumed "fathers," which comes down to the "best interests of the child." That's why I said I think the determination would probably come down to Bauer in a custody case, but that it would be a closer call in the present case, where the "best interests of the child" for the purposes of financial support for the single mother might be better served by having the guy with money pay rather than going after the disabled woman who cannot work.
posted by The World Famous at 10:50 AM on January 4, 2013 [1 favorite]


This is a very history thread, with a lot of nuanced viewpoints. However, seeing how this is Kansas the United States, I'm going with the state is trying to purposely discriminate against a lesbian couple.
posted by IvoShandor at 12:00 PM on January 4, 2013


TWF, I'm really not up on my family law and even that would be in a different country, so feel free to tell me I'm wrong, but why would there only be a presumption of parentage by Bauer? Assuming we kept the donor sperm law the same but opened up marriage and everything that flows from it to same-sex couples, in my head the steps are going:

0) Schreiner and Bauer are married (or possibly cohabitating/common-law)
1) Marotta donates sperm w/out doctor. He has a presumption of parenthood.
2) Schreiner gives birth. She is a parent. As Bauer & Schreiner were married when Schreiner gave birth, Bauer has a presumption of parenthood. Conflict.
3)* Bauer registers her name on the birth certificate as a parent.
3a) Due to 3, Bauer's presumption is crystallized, and Marotta's presumption is rebutted. Does 3a not follow from 3?

*#3 isn't necessarily going to happen, and I understand that this would cause the conflict situation. Is that the "biggest problem" you're referring to? Because if that's the only thing, I think it's not unreasonable at first blush to require Bauer to register as the parent. Marotta can presumably trust her to do so, and that scenario could happen with an infertible heterosexual couple+friend donor as well [although I understand that it's significantly less common and so we've got a differing impact which might be enough to be an equality issue, but I don't know enough to discuss that offhand]
posted by Lemurrhea at 12:10 PM on January 4, 2013


while it is a very history thread, it's actually a very interesting thread . . . wtf?
posted by IvoShandor at 12:21 PM on January 4, 2013


Lemurrhea, that's a good question. As I read the statute (and as a non-Kansas lawyer looking at it from the outside), I don't see where registering Bauer's name on the birth certificate resolves the conflict and rebuts Marotta's presumption. But I could be wrong. Where in the statute are you seeing that provision? Are you basing that on the "permanent father and child relationship" language of K.S.A. 38-1138?
posted by The World Famous at 1:33 PM on January 4, 2013


Under the statute, the presumption of paternity would be on both Bauer and Marotta.

I'm sorry but I don't see the where the presumption on Marotta would arise. Could you elaborate?
posted by Authorized User at 2:34 PM on January 4, 2013


I'm guessing if there's ambiguity in the statute regarding bio dad vs married heterosexual dad paternity, this has been resolved in Kansas case law.
posted by zippy at 2:43 PM on January 4, 2013


I believe it would arise under both 38-1114(a)(4) and (5), wouldn't it?

If the genetic test has not yet been performed, I suppose his lawyers could fight the state on that basis. But as soon as the test is run, the presumption will attach. His only way out in the present case appears to be 38-1114(f), and he can't rely on that because he didn't provide the semen to a licensed physician.

It looks to me like his written contract with the couple might constitute written recognition of paternity under subparagraph (4), though that might not be the case since the contract was apparently executed before the child's birth and I'm not sure whether that matters under Kansas law. So I guess I don't have enough to go on on that subparagraph.

If Bauer were presumed to be the father, as well, then that would trigger 38-1114(c).
posted by The World Famous at 2:45 PM on January 4, 2013


There's also whether the state in practice would ever go beyond the non-bio parent in a married (heterosexual) couple in pursuit of benefits. I am guessing the odds of that happening in the first place would be p=.0000000 ... 0000001
posted by zippy at 3:07 PM on January 4, 2013


(where the non-bio parent didn't initiate the search or complain "that's not my kid," that is)
posted by zippy at 3:08 PM on January 4, 2013


I was assuming that in the hypothetical case there would be no written agreement since there would be no perceived need for it.

This means that there would be have to be someone calling for the genetic test as per 38-1115 and this could be just about anyone. And the state has the right to 'establish parenthood'. That means if the state really wanted to, they could challenge the parentage and have the genetic test done. So the presumption would rise after that. Would the state really try to prove someone else is the parent when the parenthood has already been established?
posted by Authorized User at 3:13 PM on January 4, 2013


There's also whether the state in practice would ever go beyond the non-bio parent in a married (heterosexual) couple in pursuit of benefits. I am guessing the odds of that happening in the first place would be p=.0000000 ... 0000001

Wouldn't an equivalent case be a single, divorced woman, not a married couple? This is, most certainly, a strange case given that the couple are no longer together but nevertheless still live together and raise the children together. I am guessing the occurrence of a couple - same-sex or hetero - having multiple children together, divorcing, then remaining together in the same residence and raising the children, then both becoming unable to financially support the children and turning to the state for assistance is also remarkably low, even without the addition of an off-the-books sperm donor to the story.

Would the state really try to prove someone else is the parent when the parenthood has already been established?

I don't know.
posted by The World Famous at 3:26 PM on January 4, 2013


TWF, exactly. Although I think 1130 should also work. I hadn't checked at the time but expected a precedence clause where an acknowledgement of paternity would override any presumptions that exist. And that at least makes sense - if the birth certificate says I'm the dad, it doesn't matter if some other guy gave the sperm. And otherwise there's absolutely no way to officially be a father, rather than just have a presumption.

I'm leaning towards really terrible drafting or something. It should work the same way as if a parent dies and their widow(er) remarries. There's a mechanism to put the new spouse as the parent, there has to be or else wtf? That mechanism could be used by Bauer once they make the language neutral.
posted by Lemurrhea at 3:40 PM on January 4, 2013 [1 favorite]


We don't know if the non-bio mother is financially capable of providing support to the child. The system actually is beneficial to the lesbian couple at the heart of this because the non-bio mother's income and financial circumstances can not be factored into the ability of the bio mother's application for state aid on behalf of the child.
posted by humanfont at 3:52 PM on January 4, 2013


We don't know if the non-bio mother is financially capable of providing support to the child.

Per the first linked article: "When Bauer was diagnosed in March with what she calls “a significant illness” that prevents her from working, Schreiner sought health insurance for their daughter from the state."

Maybe it's mistaken, though.
posted by The World Famous at 4:02 PM on January 4, 2013


And for anyone interested in seeing just how crazy this sort of thing can become, a California Court of Appeal case just came down today. Per Shaun Martin's blog, here's Martin's quick break-down of the facts:
Biological Father (BF) is married to Wife. Biological Mother (BM) is living with Boyfriend. BM is having an affair with BF but also sleeping with Boyfriend, and gets pregnant. BF and BM get a paternity test that shows that BF is the father, but BF says that can't be true because he's had "an operation" so wants a new (more accurate) paternity test after the child is born.

BF and BM break up, the kid is born, and BM marries Boyfriend. Boyfriend doesn't know about any of this, and signs a voluntary declaration of paternity in the hospital when BM represents (in writing on the relevant form) that no one else but Boyfriend could be the father; i.e., that she was not sleeping with anyone else. BM and Boyfriend raise the kid together.

Then Wife -- presumably upon learning of the affair -- tells Boyfriend about the test results. Boyfriend is profoundly bummed, but still wants to raise the kid as his own. But BF now wants joint custody of the child. So sues. Whereas BM and Boyfriend don't want BF involved.
Here's Martin's blog.

Here's the court's opinion.

The court affirmed the lower court's finding that two men were to be presumed fathers of hte child and then concluded that the biological father's presumption of paternity, under the circumstances, was controlling, as it was “the presumption which on the facts [was] founded on the weightier considerations of policy and logic" under California law. In the California case, though, one of the facts in consideration was that the biological father was petitioning for joint custody, unlike in the Kansas case where the biological father wants no responsibility and no rights.

Unfortunately, it looks like the statute in Kansas, which refuses to consider a woman as a potential second parent in addition to the biological mother, won't even let the court get to the question of what policy, logic, and the best interests of the child would dictate in this case as far as whether Marotta should be on the hook for child support. But at least the state isn't withholding support on that basis.
posted by The World Famous at 4:23 PM on January 4, 2013 [1 favorite]


Second parent adoption and same sex marriage are liable to make this a non-issue for partnered gay parents in more and more jurisdictions. It will be people becoming single parents, and their donors, who are left in legal limbo by our implicit but apparently intractable insistence that a family with fewer than 2 parents is inherently incomplete and wanting.
posted by Salamandrous at 4:25 AM on January 10, 2013


Librarygeek: "What I have not seen anyone other than Schmod (and I've only seen a few responses) point out is that it is likely that the lesbian couple in question would not have been able to get a doctor to do fertility treatments. It can be difficult to find in states where we have legal protection. In states that do not even have equal rights clauses for gays? Forget about getting equal medical treatment -- much less anything involving children (gasp!)

For that reason alone -- this is very much a gay rights issue.
"

This subject -- the unnecessary burdens that gay couples face when planning families -- is going to come up in the upcoming Supreme Court trial to determine the validity of Prop 8. Astonishingly, the argument's being used by the conservatives in favor of discrimination.

I'm no lawyer, but I'm racking my brain to try to figure out how they could imagine that this defense would actually work.

Also, a Virginia couple I'm friends with had a really tough time adopting a shelter dog a few years ago, because they couldn't document their relationship as anything other than "roommates." Ultimately, they were able to convince the shelter that they were going to be "roommates forever," and thus provide a stable environment for the dog. The whole process took several months. Can you imagine the difficulties that a gay couple would have if they wanted to adopt a human instead?
posted by schmod at 10:38 AM on January 28, 2013


I'm no lawyer, but I'm racking my brain to try to figure out how they could imagine that this defense would actually work.

They think it will work for three reasons:

1. They think it's a self-evident truth that gay people adopting is bad for the world.

2. They think that, if you really, really believe something deep down, you don't need any empirical evidence to support it.

3. They don't grasp that courts decide matters based on evidence, not based on what one of the parties thinks is a self-evident truth.

I would posit that there's a correlation between at least the first two of those points and the religious origin of their opposition to same-sex marriage.
posted by The World Famous at 10:48 AM on January 28, 2013 [1 favorite]


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