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.