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* Professor and Director of International Legal Programs, Washburn University School of Law, Topeka, Kansas, USA, email:firstname.lastname@example.org; B.A. (1972) and J.D. (1975) University of North Dakota; LLM (1979) Harvard University; licensed topractice law before state and federal courts in North Dakota and the United States Court of Appeals for the Eighth Circuit. Professor Maxwellgratefully acknowledges Washburn University School of Law for funding this article through a summer research grant. She also thanksBarbara Dye and Lynn Trevino, Class of 2008, Washburn University School of Law, for their excellent research assistance.See also N.G. Maxwell, Taking the Side Exit in the United States, 2001 Nemesis, no. 1, pp. 14-22, which analyzes the US case law involvingsperm donors from 1977 to 2000.
1 169 P.3d 1025 (Kan. 2007).2 Browne v. DAlleva, 2007 Conn. Super. LEXIS 3250, p. *28.
http://www.utrechtlawreview.org/ Volume 4, Issue 2 (June) 2008 135
The Kansas case of K.M.H.US law concerning the legal status of known sperm donors
Nancy G. Maxwell*
On October 27, 2007, the Kansas Supreme Court issued its opinion in the case of In the Interestof K.M.H and K.C.H1 (hereinafter K.M.H.), joining the growing number of states that havedetermined the legal status of known sperm donors vis--vis their biological children born towomen who are not in heterosexual marriages. This article examines the K.M.H. decision withinthe context of this increasing body of US case law, in an attempt to discern K.M.H.s contributionto, and its place in, this nascent area of law which is changing on almost a daily basis.2
The article begins with an explanation of parentage law in the United States, including adiscussion of the constitutional ramifications of parental rights. Next the article examines the UScourt decisions involving known sperm donors asserting parental rights prior to the K.M.H.decision. The purpose of the case law examination is three-fold. First, under the common lawsystem the courts have the authority to make law in the absence of statutory provisions that dealwith a particular issue before the court. In the common law system the court decisions are the lawand the inferior courts must follow the appellate court decisions. Consequently, in those situa-tions in which there are no applicable assisted insemination by donor (AID) statutes, the courtdecisions become the sole law on the subject of whether known sperm donors have parentalrights. Second, even when the legislature has enacted AID statutes that address the parental rightsof sperm donors, the courts have the authority to interpret those statutes and these interpretationsbecome binding law until the legislature amends the statute. Finally, the courts in the UnitedStates have the authority to strike down statutes as violations of federal or state constitutionalprovisions, resulting in the statutes becoming unenforceable. Interestingly, all three of thesepossibilities occurred in US known sperm donor cases that were decided prior to the K.M.H. case.
The article proceeds with a synthesis of the cases that were decided before the K.M.H. case,attempting to find common themes among the cases. The article then details the four differentopinions in the K.M.H. case and, in particular, lays out the discussion of the constitutional
NANCY G. MAXWELL
3 The due process clause appears in two places in the United States Constitution, in the fifth amendment, which applies to the federalgovernment and the fourteenth amendment, which applies to the state governments. The equal protection clause appears in the fourteenthamendment.
4 Lehr v. Richardson, 463 US 248 (1983).5 Ibid., at pp. 261, 262.6 See generally C.M. v. C.C., 377 A.2d 821 (N.J. Juv. & Dom. Rel. Ct. 1977).
challenges to the Kansas sperm donor statute. Next the article discusses how the previous knownsperm donor cases impacted the sperm donors arguments in K.M.H., and how these cases failedto support his claim for parental rights.
The article continues with a review of two more decisions, issued after the K.M.H. case,incorporating these cases into the evolving trends discerned in the recent court decisions. Thearticle concludes by summarizing K.M.H.s position within that evolution.
2. Parentage law in the United States
Although each state in the United States has the authority to determine the laws concerning achilds parentage, once parentage is established, the childs parent or parents have exclusiverights to exercise their authority over the child. As a general rule, if a child is born during aheterosexual marriage, then parentage laws create a presumption that the husband and wife arethe childs legal parents and the couple shares parental authority. When the child is not born toa heterosexual marriage, however, the parentage rights of a biological father were unrecognizedin earlier US cases, following the traditional common law rules. This changed, though, whenunmarried fathers began to challenge the constitutionality of statutes that had prevented themfrom asserting parental rights concerning their biological children. State statutes that ignoredunmarried fathers in custody or adoption actions were struck down as unconstitutional becausethe statutes violated either the equal protection or the due process clause, or both, of the UnitedStates Constitution.3 One of the cases that is quoted and plays prominently in the K.M.H. caseis Lehr v. Robertson.4 There the United States Supreme Court held that, When an unwed fatherdemonstrates a full commitment to the responsibilities of parenthood by coming forward toparticipate in the rearing of his child, () his interest in personal contact with this child acquiressubstantial protection under the Due Process Clause. () If he grasps that opportunity andaccepts some measure of responsibility for the childs future then the unwed fathers constitu-tional due process rights must be protected.5
Based on this analysis, a father of a non-marital child must be given an opportunity toassert his parental rights and, if he has attempted to assume parental obligations, he cannot beexcluded from the protections granted to other legal parent-child relationships. These rightsinclude the ability to petition a court for a custody/residency order or a visitation/contact order.Only a court-ordered termination of his parental rights, or an adoption of the child by a personother than his spouse, can cut off the biological fathers status as a legal parent. Therefore, thequestion of whether a known sperm donor in an AID birth is the childs legal parent becomesextremely important, because conferring legal fatherhood to a sperm donor puts him on equalfooting with the legal mother, regardless of whether they are married to each other.
3. Early case law
In 1977, a New Jersey court decided the first reported case dealing with the parental rights of aman who provided his sperm to an unmarried woman in the case of C.M. v. C.C.6 As with many
The Kansas case of K.M.H. US law concerning the legal status of known sperm donors
7 C.M. v. C.C., 407 A.2d 849 (N.J. Juv. & Dom. Rel. Ct. 1977).8 Unif. Parentage Act, 9B U.L.A. 287 (1987).
of the cases that were to follow, the testimony of the sperm donor and the mother were conflict-ing and contradictory. For example, in the majority of these cases, including the Kansas case ofK.M.H., the mother asserted she did not intend for the sperm donor to have a parental relationshipwith the child. The sperm donor, on the other hand, claimed he assumed, or the parties agreed,he would be the childs father and have certain parental rights concerning any child born of theAID. In the facts of the New Jersey case, the mother testified that she told the sperm donor shewanted to have a child by donor insemination. The sperm donor suggested he would be willingto provide his sperm and the mother accepted his offer. The mother stated she did not intend forthe sperm donor to have a parental relationship with the child. The sperm donor, on the otherhand, testified he and the mother were dating each other and contemplated marriage. He furthertestified the mother wanted to have a child by him, but she did not want to have intercoursebefore they were married. Consequently, the sperm donor provided sperm to the mother, whoinseminated herself at her home, pursuant to a doctors description of the insemination process.The parties stopped seeing each other three months into the mothers pregnancy, when theydiscovered they did not share the same assumption about the role the sperm donor would havein the childs life.
Because there was no applicable AID statute in New Jersey in 1977, the court relied oncommon law principles that had developed in New Jersey case law. The court first noted, undercurrent law, a natural father had visitation rights to his children, even though he was notmarried to the childs mother. The court framed the issue as one involving the definition of anatural father. In doing so, the court looked at AID cases concerning married couples. The courtdetermined these cases were factually distinguishable from the present case because the issue inthose cases was whether the husband or a sperm donor was the childs legal parent. The presentcase, however, did not involve competing interests of two men. The court therefore analogizedthis case to conception by intercourse and stated the sperm donor was the only other parent figurein this case, and the fact that an unmarried woman conceived the child without intercourse wasnot relevant. In addition, the court stated the sperm donor did not waive his parental rights bydonating his sperm. The court held that because (1) it was in the childs best interests to have twoparents whenever possible; (2) there was no one else to assume the responsibilitie