New Turn In Kansas Craig’s List Donor Case

Many of you will know that there is a case from Kansas that I have been following for some time.   Before I get to the newest twist, I’ll do a quick summary.  For more details follow the link to earlier posts.

Angela Bauer and Jennifer Schreiner were a lesbian couple seeking to have a child.   They found William Marotta via a Craig’s List ad.   He agreed to provide sperm and, in a written contract, agreed that he would be a donor only and not a legal father.

The problem is that in Kansas that contract does not have legal effect.   What would have accomplished the purpose was if the sperm had been provided to a doctor rather than directly to the women.   An agreement–even a clear written agreement–simply doesn’t do it under KS law.

Now as it happens all of the individuals involved (Marotta and the two women) honored the agreement.  The child was raised by the two women and had no contact with Marotta.   But then the one woman who was a legal mother needed financial support from the state and the state, looking to recoup its costs, determined that Marotta was a legal parent and hence owed support.   It commenced suit against him.   A trial court affirmed the state’s theory and ordered genetic testing.  This brings us up to date.

Now I think everyone is pretty confident what the genetic testing will show:  It will show that Marotta is the genetic father of the child.   No one doubts this.  But I suppose it is still a necessary step in the process the state has set in motion.  He cannot be declared a legal parent without it.

And that is what makes the latest court action interesting.   The Kansas Supreme Court issued a brief order halting the genetic testing.   At this point, the order would seem to mean nothing more than that the Kansas Supreme Court is thinking about it.   (Once the testing is done it cannot be undone.  At the same time the test can just as well be done June 1 as May 15.  Thus, if you want to pause things and think, it would be logical to do it before the irreversible action of testing.)

But the very fact that the Court finds there is something to think about is interesting.   Is the Kansas Court considering whether the contract itself controls so that there is no point to the testing?   This would be Marotta’s hope, surely.   Is the Court considering whether it makes any sense to treat Marotta one way where an identically situated man who happened to hand off his sperm to a doctor would be treated another?  (This is a potential argument to get Marotta where he wants to be.)   Is the question whether genetic testing is in the best interest of the child?

This last is a complicated question.   You could say that the genetic testing will simply give her information–information it is in her interest to have.   But that’s not really true here.   Everyone is pretty well satisfied that Marotta is the man who provided the sperm.   To the extent a child her age knows/wants to know/needs to know about this, she does.   (Or at least, she does to the extent her legal parent judges it appropriate and that is one of those judgments we entrust to parents.)

In fact, I think it is fairly clear that what the genetic testing will do–from a legal point of view–is give her a second legal parent–that being Marotta.   Is this in her interests?   Obviously there are different ways to think about that.   The sudden arrival in her life of a man who does not know her, does not know her functioning social parents, and does not want to be in that relationship may not be beneficial.

The question the Kansas Court may be pondering, though, probably isn’t whether it would/would not be beneficial.  The question the court faces is once removed from that:   Does the trial court need to figure out whether it would be beneficial?   Is the question of whether it would be beneficial for this particular child even on the table?  This is not a question the state has sought to ask/answer.   And it will be interesting to see what more (if anything) the Kansas Court has to say.



7 responses to “New Turn In Kansas Craig’s List Donor Case

  1. yes i’m finding this a bit confusing. as i understand the article, marotta petitioned to halt genetic testing so that a best interest of the child hearing could be conducted. But i had thought that BIC only comes into play after the parents are identified and not before? so whats up?

  2. i have a question- what about the second mom? why wasn’t she paying child support? if she wasn’t, than the parties can not have been said to have been living up to their agreement. she was not functioning wholly as a parent.
    perhaps she was paying child support but it was still insufficient? is that why the state decided to go after the wealthier party? if it turns out that marotta was a homeless ward of the state would they still name him father?
    just some questions for speculation.

    • I thought I read somewhere that she has no money?

    • Agreed Ki. It sounds like this is more of a homophobic state trying to make a point than hold both parents accountable.

    • Second Mom Ki?

      OK so it works. If they use the wrong word to describe a thing long enough even perfectly logical people will begin to use that wrong word if they want to engage in a conversation about the topic with the person who insists on using the wrong word over and over again. Absolutely fascinating how thought controls language controls thought.
      If you want to change their minds change the meaning of words so that they cannot say what they really mean anymore. Now suddenly a person has two mothers because their father is MIA and their mother happened to be romantically connected to a female around the time they were born and they were told to affectionately refer to that woman as their other mother. All my best girlfriends get called Aunt by my kid but she knows the difference. Some of them lived with me for long durations too and took care of her when I could not. She knows the difference between a real aunt and a fictive one though. And we are MUCH closer and bonded to the fictive aunts than the real ones but honestly I don’t try to pass it off to the world and expect them to believe my friends are really and truly her aunts for legal and kinship purposes. People have real gall with this swap a parent for the boyfriend/girlfriend/husband/wife of the parent whose raising them stuff.

  3. Happy Mother’s Day Julie and Ki! This is, after all, the holiday we put all our efforts into.

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