This is in the nature of a follow up to a series of posts about a recent Kansas Supreme Court decision (Goudschaal v. Frazier)recognizing a lesbian co-mother as a legal parent. The discussion in this post most directly relates to the last of the posts about the new Kansas case.
As I discuss there, the new opinion is an interesting contrast to a pending Kansas case that has garnered a lot of press and also been discussed here. In that pending case the state is seeking child support from William Marotta. Marotta agreed to be a sperm donor for a lesbian couple, Angela Bauer and Jennifer Schreiner. As was the case in Goudschaal, the parties put their agreement in wriring so there is no debate as to the terms. And unlike the parties in Goudschaal, Marotta, Bauer and Schreiner all lived by the terms of their agreement. The new cases exists not because a dispute between the parties to the agreement but because the state is seeking child support from Marotta.
In that last post on the new Kansas case I wrote about how the two cases can be distinguished. The answer to that is that Marotta, Bauer and Schreiner didn’t use a doctor to perform the insemination. If you think about it, I’m not sure why the presence or absence of a doctor should have such a dramatic effect on legal parentage, particularly in a case where there is no dispute about intention or action among the parties.
And now the update: Bauer (who is in the position analogous to Frazier) has now sought to intervene in the state’s case seeking support from Marotta. She wants the same recognition of parental rights that Frazier won. Her argument is that she’s in essentially the same position as Frazier and so should get the same result. The problem, of course, is the absence of the doctor. And putting logic (or lack thereof) the problem is that the doctor requirement actually comes from the statute (rather than from case law). That’s a bit harder for court’s to work around, should they wish to do so.
It’s a little hard to tell from the news story but it seems to me that Bauer’s interest is as much in securing her parental rights as it is in having a voice in the question of child support from Marotta. Of course, it’s not clear what happens to the child support action if the child has two legal parents in Bauer and Schreiner. But this is really law in action– a new opinion put to use with slightly different facts. I will do my best to keep an eye on it.