Kansas Court To Consider Whether Sperm Donor Has Parental Rights

JOHN HANNA, Associated Press

TOPEKA, Kan. November 28, 2006-

An unmarried Kansas woman wanted a child and asked a friend to donate his sperm. He did, thinking he would act as the father for the twins conceived in September 2004.

But the man and woman didn't put anything in writing as required by law, and when the twins were born, she went to court to make sure she would be their sole parent. The resulting legal dispute is now before the Kansas Supreme Court.

It's the first time the state's highest court has considered the constitutionality of that 1994 law, which says a sperm donor has no parental rights unless he has a written agreement with the mother. A group of family law professors contends ruling in the man's favor could dramatically alter how the law deals with sperm donors.

The seven justices plan to hear arguments at 1:30 p.m. Dec. 4 and could rule in February.

"It is strange and it is complicated," said Joan Hollinger, a University of California-Berkeley law professor who argues the Kansas law ought to be upheld. "We're really in the midst of trying to figure out the parenting issues."

Court records provide few details, listing the man only as D.H., the woman as S.H. and the children as K.C.H. and K.M.H.

The twins were born in May 2005. The woman went to court the next day, and a Shawnee County district judge concluded in December that D.H. had no parental rights, prompting the appeal.

"It's caused a great deal of anxiety," said Kurt James, a Topeka attorney representing the man. "He feels betrayed by her failure to live up to her bargain and betrayed by the loss of his children from the time of their birth."

But S.H. contends she intended to be a single mother. She also wanted to know who was donating the sperm so that she would have information about the man's health history, should the babies have future medical problems, Susan Barker Andrews, a Topeka attorney representing her, wrote in her court brief.

As for D.H., he could have sought a written agreement to safeguard his parental rights, even if he didn't know Kansas law required one, Andrews wrote.

"Ignorance of the law cannot result in making one above the law," Andrews wrote.

The case has attracted the attention of legal scholars across the nation because of arguments made in a friend-of-the-court brief filed by Linda Henry Elrod, director of the Children and Family Law Center at Washburn University in Topeka.

Elrod argued that D.H. has a "fundamental right to parent" that can't be abridged without due legal process. Furthermore, she wrote, the Kansas Constitution gives men and women equal rights "in the possession of their children."

That means, she said, the 1994 law is unconstitutional.

Also, Elrod wrote, "Kansas public policy seeks to ensure that children have two parents to support them."

But 21 professors of family law, led by Hollinger, replied in another friend-of-the-court brief that the Kansas law ought to be upheld. Participants' institutions included the University of Baltimore, Michigan State University, Ohio State University, Temple University and Washington University in St. Louis.

In an interview, Hollinger said that while a few courts have shown some sympathy to sperm donors when legal issues arise, none has said a sperm donor has constitutionally protected parental rights. Kansas and at least 15 other states, including California and Texas, say sperm donors don't have parental rights absent a written agreement.

A woman who wants a child might not opt for artificial insemination in such a legal climate, Hollinger said. Meanwhile, men wouldn't want to donate sperm knowing they could be held liable to support the child, even years later.

"Can't the recipient mother turn to you and say, 'Gee, I thought I could manage on my own but it turns out life is a bit tough.'?" Hollinger said. "I think there are disastrous consequences."

But James, D.H.'s attorney, said the goal of the appeal isn't to create legal problems for sperm donors who don't intend to be involved in parenting. Instead, it's to protect the donors who do want to be involved.

"The case may have a wider application in getting our Legislature to more carefully define what a donor should be," he said.

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The case is, In the Interest of K.M.H. and K.C.H., No. 96,102.

On the Net:

Kansas Supreme Court: http://www.kscourts.org