Kansas Sperm Donor Denied Parental Rights

This outcome would be highly unlikely in an Ontario court.

Topeka Capital Journal reports on a contoversial decision of the Kansas Supreme Court:

The Kansas Supreme Court ruled Friday that a sperm donor who wants to have parental rights with any subsequent children must have a written agreement with the mother.

The 4-2 decision upholding constitutionality of Kansas' current donor law was the first of its kind in the nation.

The ruling was the offspring of lawsuits involving Samantha Harrington, who conceived twins with sperm donated by Daryl Hendrix. The mother and the donor, both of Topeka, disagreed on whether they had entered into an oral agreement giving parental rights to the donor. They also disagreed on whether certain documents constituted a written agreement.

Court testimony shows Harrington, 34, a lawyer, had solicited Hendrix to donate sperm.

Hendrix, a Josten's employee, Reece & Nichols Homes marketing director and home decorator, said they orally agreed to co-parent the children together.

Based on this news report, it seems clear that the Court came to its decision only reluctantly:

...[Justice Carole A]. Beier authored the opinion for the majority, holding the law's requirement of a written agreement constitutional under both state and federal due process and equal protection provisions.

"All that is constitutional is not necessarily wise," she wrote. "We are mindful of, and moved by, advocacy for public policy to maximize the chance of the availability of two parents — and two parents' resources — to Kansas children. We are also aware of continued evolution in regulation of artificial insemination in this and other countries.

However, weighing of the interests of all involved in these procedures, as well as the public policies that are furthered by favoring one or another in certain circumstances, is the charge of the Kansas Legislature, not of this court."

McFarland said the provision requiring written agreement "appears to be aimed at protecting both parties from unwanted duties and/or obligations being imposed without their consent in the very limited factual situation to which it applies."

In dissent, Caplinger said she would have found the law unconstitutional because the donor had a fundamental right to parent and the law's requirement of a written agreement resulted in a passive waiver of that right.

"Therein lies the constitutional problem," she said. "Fundamental rights must be actively waived, rather than passively lost to inaction."

(via ABA Journal)

- Garry J. Wise, Toronto

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