Jan. 1, 2013 — -- The state of Kansas is seeking child support from a man who says he signed away all parental rights when he donated sperm to a lesbian couple.
"It came out of the blue. He was absolutely floored," attorney Ben Swinnen said of his client William Marotta.
Marotta, 46, met Angela Bauer and Jennifer Schreiner in 2009 when he responded to a Craigslist ad from a lesbian couple in Topeka, Kan., who were offering $50 per sperm donation, according to legal documents.
Marotta and his wife met with the women and he agreed to donate to them without accepting the money, Swinnen said.
All three signed a sperm donor contract that stated that he would have no paternal rights and would be in no way responsible for any child that resulted from the donation.
"Jennifer and Angie further agree to indemnify William and hold him harmless for any child support payments demanded of him by any other person or entity, public or private, including any district attorney's office or other state or county agency, regardless of the circumstances or said demand," the agreement read.
Marotta donated and Schreiner gave birth to a little girl through artificial insemination, according to court documents. The issue that would later become a legal factor, however, is that the artificial insemination was not performed by a licensed physician, which Swinnen said Marotta did not know at the time.
"He sporadically heard that the child was born, but that was about it," Swinnen said. "He had no contact with the child."
"Three years forward, the couple sought state assistance for the child and the Kansas Department of Children and Families sought out of them the name of the father and said they would not provide assistance unless they provide the name," Swinnen said.
The women gave the state Marotta's name and on Oct. 3, attorney Mark McMillan filed a petition on behalf of the Department of Children and Families that claimed that Marotta was the baby's father and needed to support her.
The filing said that the state had spent $189 on the baby from July 2012 to September 2012 and nearly $6,000 in medical assistance, which Marotta had a duty to pay.
Swinnen said Marotta was "absolutely floored" by the petition, especially after signing the agreement.
Marotta's attorneys claimed that as the sperm donor, he had no responsibility to pay. But the state shot back saying that the agreement signed was invalid because the artificial insemination was not performed by a licensed physician, according to legal documents.
"The state does not recognize the contract. We'll see if the courts in Kansas do," Swinnen said. "We have filed a motion to dismiss. We hope to prevail, but this is the first round."
Kansas law states that the donor is "treated in law" as if he were not the father if the donation of semen is provided to a licensed physician.
Marotta's attorneys protested this requirement.
"If, as the petitioner alleges, the use of a licensed physician is a primary requirement...then any woman in Kansas could have sperm donations shipped to her house, inseminate herself without a licensed physician and seek out the donor for financial support because her actions made him a father, not a sperm donor," they wrote. "This goes against the very purpose of the statute to protect sperm donors as well as birth mothers."
The attorneys point to a similar but converse 2007 Kansas Supreme Court ruling. In that case, a sperm donor sought parental rights after making a semen donation to a woman. The woman had a child after the artificial insemination was performed by a licensed physician. The man was denied parental rights.
Even though the woman in the 2007 case used a licensed physician, Marotta's lawyers emphasized that Marotta did the same thing as the man in the 2007 case and cannot be held responsible for what the woman did with the donation.
Bauer and Schreiner did not respond to requests for comment. A representative for the Department of Children and Families said that they could not comment on any specific cases.
A hearing regarding Marotta's motion to dismiss is scheduled for Jan. 8 in Shawnee County District Court.