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Posted on January 11, 2013 at 5:08 PM

Craig Klugman, Ph.D.

A man answers an on-line ad to assist a same-sex female couple in a committed relationship who want to have a child. The three adults sign a contract relieving the sperm donor of any financial or parental responsibilities. He has no claim on nor obligations to the child. To save money and hassle, he delivers the sample to them and in the privacy of their own home, the two women use a syringe to inseminate. Jennifer Schreiner becomes pregnant. A year later the couple separates. Schreiner is initially supported by her partner, Angela Bauer. But when Bauer becomes sick and can no longer work, Schreiner applies for and receives public assistance, about $6,000.

This is where this modern tale takes a turn into the bizarre. The Kansas Department for Children and Families files a petition against the donor, William Marotta, asking that he be forced to reimburse the state for the money paid to support the child. Marotta has asked for the case to be dismissed based on the notion that he is not legally the child’s father. The state’s case hangs on a technicality: In Kansas, a 1994 law and subsequent 2007 Kansas Supreme Court ruling says a sperm donor is not the father when the artificial insemination is done by a licensed physician. In this case, however, no physician was used. Apparently Kansas has given physicians the monopoly on deciding who is a father.

Nothing about this case is simple. One could argue that if there is an adult who is able to provide for a biological child, that person should be required to pay support. This argument holds that the taxpayers should not have to pick up the tab when the parents have resources. But why go after the sperm donor instead of the partner, a person who undertook the obligation to care for the child? One part of the answer is that Bauer is unable to work and has few funds. The second part is that Kansas does not recognize same-sex marriage so the state cannot go after Bauer for support.

The other side would argue that these were three consenting adults and that the donor signed away his rights, claims, and obligations to the child. Marotta’s attorney says that the law is outdated. After all, it turns out that Craiglist and online media are common ways for women to search for sperm donors.

According to the state, if a woman does not go through a physician “there remains the question of who actually is the father of a child or children.” I suppose that the state of Kansas has never heard of cases of embryos being accidentally switched in infertility labs or of a UC Irvine fertility specialist who substituted his own sperm. Shockingly there are even cases of children whose fathers turn out not to have been the biological father. Thus this argument fails the reality test. The state goes on to say that without the physician requirement, a woman could get sperm to inseminate herself and seek financial support from the donor. Or she could use the sperm of a husband or boyfriend who poses as a sperm donor and thus he avoid him having to pay child support. This views pregnancy and childhood as a commodity or merely as a means to an end of getting money.

One might ask what about the child in all this? In December she turned 3. The state has requested that a guardian be appointed to represent her. I suppose one explanation might be that a loving lesbian mother cannot speak for her own daughter if that mother disagrees with the state.

There are several controversial issues raised by this case: same-sex marriage, fertility treatment, failure to use a physician, a claim that the state can invalidate the consenting decisions of three mature adults, a mother’s ability to make decisions for a child (when the state disagrees), and that unsupervised women could go to great lengths for financial gain. One fact not often mentioned in this case is that the two women are foster co-parents of 8 other children (aged 1 month – 25 years) even after their separation. For some reason the state has not tried to find the biological parents of these foster children to request reimbursement. Yet.

Is this is a case of finance—a cash-strapped conservative state seeking funding to pay for a child’s care? Or is this a case of homophobia? Or is this to demonstrate that women are scrupulous and can’t be trusted with their own reproduction? With the court hearing put off until the late spring, only time will tell what is really going on.


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