I’ve been writing a lot about a recent Kansas Supreme Court opinion–this makes my fourth post. (The string starts here.) It’s actually the third time I’ve written about Kansas law about parenthood of people who used third-party sperm and I think it is interesting to put the cases together. I’ll work backwards just because the most recent case might be the one you have most clearly in mind.
The new one–the one I’ve been writing about–is Frazier v. Goudschaal. The key thing I want to take from it is that if two women have a written parentage agreement AND there is “not a biological father to displace” (page 27) AND there is subsequent behavior consistent with the written parentage agreement, then both women may well claim to be legal parents.
Now it is not entirely clear to me that the parentage agreement has to be in writing. There are some suggestions that an oral agreement might support the same result. But one cannot be sure and, of course, proving an oral agreement is far more difficult than proving a written one.
In a similar vein, it isn’t clear what happens if there is a biological father to displace. In this case there was none and so that’s all the court needs to say. But this point bears further consideration.
The children at issue here do have genetic (which I prefer to use instead of biological) fathers. All children do. What these children do not have is a genetic father “to displace” I take it this means that they do not have a genetic father who is also a legal father. This is because the genetic father provided sperm to a doctor for insemination of a woman not his wife and, under Kansas law, a man in that position is not a legal father.
If you wonder what happens if the man provides sperm for insemination but does not go through a doctor, you might consider the other recent discussion of Kansas law here. At least in the trial court Kansas (not the courts but the state’s attorney) takes the position that absent the doctor the man who provides sperm is a legal father. The presence of a written agreement there seems not to matter.
Frankly this seems like an odd set of rules. It doesn’t make that much sense to me to say that the agreement of the parties matters only if there is a doctor involved in the process somewhere. Why should the participation of a doctor change the validity of a written agreement? And of course, this may not be the conclusion as the second case (the one involving Marotta, Bauer and Schreiner) is just at its first stages.
Taking these two together it seems to me that you could draw a couple of important lessons: If you want to do what Bauer, Schreiner and Marotta wanted to do, you need to 1) put it in writing and 2) work with a doctor. Perhaps the (from my point of view) good news is that if you do those things, then you can create two-mother lesbian families in Kansas. At least, I think you can.
There’s only last case to tie in here–KMH, which is a few years old now and is cited in the new Kansas case. It’s a case I wrote about here almost five years ago. (How time does fly!) And it’s a bit of the flip of the Bauer/Schreiner/Marotta case. In this instance a man who provided sperm for insemination wanted to claim legal rights. He was barred from doing so because 1) the insemination had been performed by a doctor and 2) there wasn’t a written agreement that said he was to be treated as a legal father.
Again you can see the importance Kansas places on written agreements. (In KMH there might have been an oral agreement, but this is not adequate.) Written agreements, it seems, can alter the general operation of the law. And the general operation of the law is that if you use a doctor, then a man who provides sperm is a donor.
I think this actually creates a fairly coherent picture. There are, perhaps, two main principles: First, ART with a doctor has a completely different set of default rules from everything else, such that genetic relationship of a man does not establish legal parentage. Second, written agreements can change those rules. But if there is no doctor, then a genetic connection will establish legal parentage, and if there is legal parentage via genetic connection, then a written agreement won’t alter it. At least that is my working summary of current Kansas law.