Kansas Supreme Court Hears Case of Sperm Donor's Rights

John Milburn, AP, 12/4/2006

TOPEKA, Kan. - A state law that gives sperm donors no parental rights unless there's a written agreement between the man and woman is ambiguous and should be struck down, the attorney for a Shawnee County man told the Kansas Supreme Court on Monday.

Kurt James asked the court to reverse a lower-court ruling that said Daryl Hendrix didn't have paternal rights to twins conceived with the use of his sperm in 2004. James acknowledged there was nothing in writing, but said Hendrix assumed he and Samantha Harrington agreed that he would be involved in the children's lives.

"The Kansas statute should be clarified to help Kansas fathers assert their responsibility," James said after the hearing.

It's the first time the state's highest court has considered the constitutionality of the 1994 law. A group of family law professors says a ruling in the man's favor could dramatically alter how the law deals with sperm donors.

The court could rule as early as Feb. 2.

Hendrix and Harrington were friends for a number of years when he agreed to donate his sperm to help her become pregnant. No written agreement was signed, though Harrington is an attorney.

Hendrix was present once when Harrington took a sperm sample to Missouri for insemination, but not at a second visit when insemination was successful.

Harrington and Hendrix were present for Monday's hearing but declined to speak with reporters.

Susan Barker Andrews, attorney for Harrington, said her client didn't coerce or trick Hendrix into giving sperm samples and that she always intended to be a single mother.

The twins were born in May 2005. Harrington went to court the next day, and a Shawnee County district judge concluded in December that Hendrix had no parental rights. Hendrix appealed.

Harrington had sought to have Hendrix's parental rights severed through a child in need of care petition, a step generally taken when a child is abandoned, neglected or abused by a parent. Her petition was never acted upon by the lower court, which dismissed the case.

Andrews said there was no evidence that either party knew what was required under state law to establish or waive paternity. But Harrington filed the district court petition to make her intentions clear when it was evident that Hendrix wanted more than she was offering.

"She was concerned about her security and that of her children. That's why she went the extra step and didn't rely on the statute," Andrews told the court.

James said there was little case law nationally for justices to rely upon because no other state has a provision similar to that of Kansas. But, he said, when a donor such as his client wants to be involved, there must be due process to determine what rights exist and how they should be protected.

Several family law professors who wrote briefs to the court ahead of Monday's arguments said women who want children might not opt for artificial insemination in such a legal climate if parental rights were an issue. And men might balk if they know that by donating their sperm, they could be held liable after the fact to support the child.

James told the justices that the case may prompt the Legislature to revisit the law and consider expanding or clarifying the rights of donors.

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

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