Dodging the Donor Daddy Drama: Creating a Model Statute for Determining Parental Status of Known Sperm Donors

• Author: Jennifer Nadraus
• DOI: http://doi.org/10.1111/fcre.12138
• Published date: 01 January 2015
• Date: 01 January 2015

DODGING THE DONOR DADDY DRAMA: CREATING A MODEL

STATUTE FOR DETERMINING PARENTAL STATUS OF KNOWN

SPERM DONORS

Jennifer Nadraus

Despite recent innovations in alternative reproduction technology and the increased use of artificial insemination procedures,

courts and legislatures have been unable to develop a clear and consistent test to establish the parental rights and obligations

of sperm donors. As a result, there are mixedoutcomes in cases where intended parents seek child support from an unsuspecting

donor or when donors petition the court for visitation with their biological children. This Note seeks to resolve the ambiguity

in determining sperm donors’ parental status by proposing a model state statute that makesnonpater nity the default rule. Under

the statute, sperm donors would not be subject to any of the parental rights or obligations of a traditional biological father.

However,the presumption of nonpaternity could be overcome if the parties agree, in writing, prior to the insemination. Further,

the model statute provides an exception to the default rule if the donor has played an active role in the child’s life.Adopting

this model statute will not only facilitate a market for sperm donation but also make donor rights and obligations clear from the

onset.

Key Points for the Family Court Community:

• Today, infants born using artificial reproduction technology (ART) represent more than one percent of children born in

the United States annually.

• When a donor is anonymous, the law is clear: the donor is not a legalparent. However, the law regarding knowndonors

is less straightforward. Depending on the state and the particular circumstances, the parental status of a known donor

is questionable.

• The ambiguity in the law creates confusion and disagreement among the parties in a donor agreement. By comparing

factually similar cases, in which courts interpreted donor statutes with identical language, in completely opposite ways,

it is easy to see the unpredictability in ART cases.

• The proposed model statute provides unambiguous legislation that sets out a clear standard to be used in determining

the parental status of known donors. If adopted by state legislatures, courts across the country would finally have a

consistent rule to apply, leading to less confusion and contradictory rulings.

• The key issue is honoring intentional parentage and the proactivechoice to use ART to have a child on one’s own terms.

Keywords: Artificial Insemination;Assisted Reproduction Technology;Craigslist;Known Donor;Marotta;Parental Obliga-

tions;Parental Rights;Parental Status;and Sperm Donor

I. INTRODUCTION

William Marotta, of Topeka, Kansas, is currently in the midst of a legal battle regarding financial

support of a child whom he never intended to parent.1In 2009, a lesbian couple placed an ad on

Craigslist, looking for a sperm donor for the purposes of artificial insemination (AI).2The couple, who

had been together for approximately eight years, previously adopted other children, but wanted to try

reproductive technology to add a new member to their family.3Marotta, who was “intrigued” by the

Craigslist ad, agreed to donate his sperm to the couple for free.4Prior to conception, the couple and

Marotta signed a private agreement in which he relinquished all parental rights and obligations to any

potential resulting children.5

Unbeknownst to Marotta, in order to savea few thousand dollars, the couple did not use a physician

or an attorney to assist in the process.6Instead, the couple performed self-insemination in their home.7

Several months later, one of the women became pregnant and gave birth to a child who is now four

Correspondence: Jnadra1@pride.hofstra.edu

FAMILY COURT REVIEW,Vol. 53 No. 1, January 2015 180–197

© 2015 Association of Familyand Conciliation Cour ts

years old.8Unfortunately,after a few years, the couple separated and the birth mother applied for child

support payments from the state.9Upon uncovering the details surrounding the conception of the

child, the state of Kansas claimed that Marotta, as the biological father, was liable for child support

payments.10 Over the objections of both women, who are themselves in a battle over parental rights,

the state filed a paternity claim against Marotta.11

Could a court override the written contract and go against the parties’ clear intentions to abolish the

parental rights and obligations of the donor? This question could be answeredby looking at the Kansas

statute on AI, which requires that a licensed physician perform the insemination in order to sever the

donor’s legal connection to the child.12 This one mistake—choosing to inseminate at home—could

disrupt the otherwise enforceable agreement between the donor and the couple and create an unin-

tended, eighteen-year, financial obligation for Marotta.

Unfortunately, stories like Marotta’s are common. On numerous occasions, women who have used

donor sperm to conceive a child have asked the court to order the biological father, who had no

intention to parent, to pay child support.13 Alternatively, sperm donors, who have had little to no

contact with their biological children, have petitioned the court for parental rights and court mandated

visitation.14

Despite recent innovations in reproductive technology and the increased use of AI procedures,

courts have been unable to develop a clear and consistent test for establishing the paternal status of

sperm donors.15 Legislatures have attempted to provide guidance in this area through statutes like the

Uniform Parentage Act,16 the Uniform Status of Children of Assisted Contraception Act,17 and various

versions of state law.18 However, these provisions have proved to be inadequate in providing a

consistent approach for when a court should or should not enforce a nonpaternity contract where a

known sperm donor is involved. Without uniform legislation, courts across the country have come to

different conclusions under factual similar circumstances.

Unambiguous legislation that clearly defines the rights of all parties involved should be enacted to

provide guidance in these types of situations.19 This Note seeks to resolve the ambiguity in determin-

ing the parental status of known sperm donors by proposing a model state statute, which provides: “A

donor of semen for use in an artificial insemination is not a legal parent of any resulting child.”20

Specifically,this model r ule would (1) make nonpaternity the default rule, absent a written agreement

providing otherwise; (2) eliminate the physician requirement so that all women, including those who

chose “do-it-yourself ” or “at-home” insemination, have equal access to the protections of the law; and

(3) provide an exception to the default rule by allowing a donor to be deemed a legal parent when he

has played an active role in the child’s life.

Part II of this Note sets out the history of Assisted Reproductive Technology (ART) and statistics

regarding its prevalence today. Part III explores the relevant statutory provisionsand critiques some of

the inherent flaws in the existing legislation. Part IV addresses the problems of ambiguity and

inconsistency in the current system by examining numerous case decisions regarding sperm donors

and their parental rights and obligations. Part V introduces the new model statute and explains why it

will better resolve the current issues. Part VI addresses potential concerns with the new model statute.

Part VII concludes this Note by discussing the importance of facilitating a market for sperm donation

and ensuring that all parties know their rights and obligations from the onset.

II. THE HISTORY OF ASSISTED REPRODUCTION TECHNOLOGY

A. EMERGENCE OF A NEW METHOD OF CONCEPTION

Today, infants born using ART represent more than one percent of children born in the United

States annually.21However, ART was not alwaysa common way of conceiving a child. A woman’s use

of her husband’s semen in an AI procedure, also known as homologous insemination, is said to have

begun in the late eighteenth century.22Almost a century later, heterologous insemination, or the use of

semen from a third-party donor (the focus of this Note), was introduced.23

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