June 25, 2019

The State of Kansas Wants a Sperm Donor To Pay Child Support. Could This Happen in Colorado?

Laura Koupal PhotoKansas, 2009. William Marotta provided sperm to a lesbian couple, Angela Bauer and Jennifer Schreiner, to enable them to have their first child together. Schreiner conceived a child, a girl, by artificial insemination done at home with Marotta’s sperm. Marotta has never had a relationship with the child.

Several years later Bauer and Schreiner broke off their relationship but both women continued to co-parent and provide for their child. Schreiner applied for state assistance for the child. Although Schreiner was listed as the sole parent on the birth certificate for the child, the Kansas Department of Children and Families required that she list a father’s name. Schreiner listed Marotta as the father and the state is now ordering Marotta to pay child support.

It is being reported that the parties had entered into a sperm donor agreement prior to the insemination. According to the reports, the donor agreement contained language stating that Marotta waived any parental rights and that Bauer and Schreiner agreed to indemnify Marotta and hold him harmless for any child support payments demanded of him by any other person or entity, public or private.

The state of Kansas is arguing that it does not recognize the agreement because the artificial insemination was not performed by a licensed physician. Kansas statutory law provides that 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. Kan. Stat. Ann §23-2212(f).

This story has made national news in the last week. Colorado sperm donors and intended parents may be wondering if a similar claim could be brought in Colorado. The short answer is yes. Colorado statutory law has a similar requirement stating that the assisted reproductive procedure must be done under the supervision of a licensed physician or advanced practice nurse. Specifically, the statute states, in part: “If, under the supervision of a licensed physician or advanced practice nurse, and with the consent of her husband, a wife consents to assisted reproduction with an egg donated by another woman, to conceive a child for herself, not as a surrogate, the wife is treated in law as if she were the natural mother of a child thereby conceived. Both the husband’s and the wife’s consent must be in writing and signed by each of them. The physician or advanced practice nurse shall certify their signatures and the date of the assisted reproduction and shall file the consents with the department of public health and environment, where they shall be kept confidential and in a sealed file; however, the physician’s failure to do so does not affect the father and child relationship or the mother and child relationship.” C.R.S. §19-4-106. Colorado has the added requirement that the recipient of the sperm must be married.

However, Colorado does allow second parent adoptions. After a child is born to a sole legal parent, same-sex couples may petition the court to have the other non-biological parent added to the birth certificate. The child’s two legal parents responsible for support and care would then be the biological mother and the adoptive mother, not the sperm donor.

Laura Koupal founded Koupal Law Firm, P.C. this year. Prior to starting her own firm, Laura spent nine years in private practice representing clients in assisted reproductive technology matters, complex divorce litigation, non-traditional family formation and dissolution, adoption and estate planning matters. Laura also completed a one-year clerkship with the Honorable Christina M. Habas of Denver District Court following law school.

Laura holds a Bachelor of Science degree from the University of Colorado and a Juris Doctor from the University of Denver. She is a Fellow of the American Academy of Assisted Reproductive Technology Attorneys, a professional Member of the American Society for Reproductive Medicine and RESOLVE, a Member of the Colorado Bar Association Family Law Section and the Denver Bar Association, and a Member of the American Bar Association Assisted Reproductive Technology Committee. Laura regularly writes and speaks on the issues of family law and assisted reproductive technology law. You can visit her website at www.koupallaw.com.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

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