Ethics Mess In Kansas: The Lesbians and the Sperm Donor

The parents in happier days

The parents in happier days

Auto mechanic William Marotta must rue the day he responded to a Craigslist ad placed by Angela Bauer and her life partner Jennifer Schreiner. They were seeking a sperm donor, for the obvious reasons, and he had sperm to donate. The trio then signed a contract in which all agreed that Marotta would have no rights to any child his sperm spawned, nor future responsibilities regarding the child’s care. Schreiner was artificially inseminated and conceived, making her the child’s mother, as Bauer stepped into the role of the child’s father. Exit Marotta forever, with thanks.

Or so he thought.

The life partners decided that they didn’t want to stay together for life after all, an unfortunate development for the eight, count ’em, eight kids they had accumulated during their relationship. Jennifer, the mother of the child who was 50% composed of Marotta’s DNA, decided that she wasn’t even a lesbian any more, and married a man, while the former same-sex couple agreed to jointly parent their brood. Then Jennifer applied for welfare. Bauer, meanwhile, became ill and could no longer provide her share of support for the child. Now stuck with the bill for raising eight children, Kansas began looking for someone else to foot part of the bill, and settled on…William Marotta.

Since the former Bauer-Schrieners had not complied with state law for the Marotta insemination (they were required to use a “certified doctor” for the insemination), Marotta was not afforded the protection given other sperm donors in the state. The well-being of a child trumping fairness and common sense, Marotta is now fighting a court order making him financially responsible for the end result of what he thought was a contractually- limited collaboration with  Bauer, Schriener, and an anonymous turkey baster, who is presumably without assets.

Thus it is that the least irresponsible party in this legal, ethical and familial fiasco is being made a convenient victim and scapegoat. Marotta, who is married and takes in foster children, was trying to help a same-sex couple that has extra hurdles to clear to clear in a state that doesn’t recognize civil unions or gay marriage. He would not have contributed his sperm to the women without what he thought was a binding legal agreement that his parental responsibilities would end, not begin, once a child was conceived. Had the couple stayed in love, together and healthy, that legal agreement would have achieved that goal. But their domestic and health issues threw some of the financial burden for the couple’s children on the state’s taxpayers, and they absolutely had no part in the ruined plan. Kansas, like every other government in these United States, is broke, so….sorry, Bill.

To their credit, Bauer and Schriener are siding with Marotta, which is the least they can do. He is not flush with cash either, and fighting Kansas is costing more money than he can afford. Kansas apparently does not care about the welfare of those foster children he may be unable to care for, should it take enough of his money. His lawyers have argued that the case would create a precedent that would allow any couple that self-inseminated without a sperm donor’s knowledge to subvert the state’s laws protecting such donors and force him to pay child support. Kansas argues that the law is the law: the child comes first, and it isn’t the child’s fault that his assorted creators didn’t do things by the book. The law says that without a doctor doing the insemination, a sperm donor remains the legal father, and parties cannot repeal state law by private contract.

I would not be surprised if Kansas prevails in this fiasco, and if so, it will be another example of law and ethics diverging. The ethical and legal issues surrounding sperm donor rights and responsibilities are unsettled and still hotly debated, so Marotta unwittingly was placing himself in a legal and ethical gray area from the start. His one mistake was not seeking legal counsel, but that doesn’t mean he was unethical, only naive. Kansas is unethical, for refusing to recognize same-sex unions, giving couples like Bauer and Schriener the unsatisfactory options of surrendering the rights any committed couple should have, never having children, leaving the state for somewhere more enlightened, or trying to stay together by maneuvering around legal obstacles. Bauer and Schriener also failed to do their legal due diligence, and were irresponsible to add eight–eight!—dependent children to their union unless they were virtually 100% certain they were a) fully able to care for them adequately without shifting the burden to the state and b) going to stay together. Now the innocent and unlucky Marotta may have to pay because they couldn’t fulfill their overly ambitious parental commitments.

The usually astute Ann Althouse asks in this case, “Why should the father of a child ever be allowed to contract out of responsibility for it? If he is, why shouldn’t the state control the extent to which this is permitted? Whatever you think of the mother, what about the child?” The short answer to her first question is that a woman (or a sterile man) should have the legally-sanctioned ability to fully assume paternal rights and responsibility by acquiring a man’s sperm. The only reason not to permit this is cynical and unjust: to keep donors like Marotta forever in reserve in case the state needs to find someone else to help it support the child.  It would be just as fair to pick a man’s name out of a hat and announce that he is now officially responsible for a random child’s care, because the child comes first, and he’s the designated solution.

Later, in response to a commenter who cited the freedom to make a contract, Althouse responded with this cheap shot:

“Did the child sign the contract? Do you want other people contracting away YOUR rights?”

This conveniently ignores the salient fact that when the contract was made, there was no child, and no way of knowing whether there would be a child. Waiving the imaginary rights of the non-existent, theoretical child to go after the original owner of the turkey-baster’s cargo  was a necessary and indispensable condition precedent for this child to become a realty—I’d say that’s was a good deal for the child. Althouse can’t spin this into an argument that Marotta was trying to shirk his duties as a dad. He was transferring his duties as a dad to what he thought was a responsible couple, just as adoptive parents take over the responsibilities for the child they adopt. It is no more fair for the state to come after Marotta for child support now that Bauer and Schriener can no longer meet their parental obligations to their eight kids than it would be for Virginia to try to get my son’s biological father to start paying for his support if my wife and I were hit by a bus.

It is more legal, however. Nevertheless, I think reasonable limits have to be placed on the absolutist “anything for the children” rationale in these situations, and this would be a good place for the limits to start.  Making William Marotta pay for a child that would never have existed had he not been assured that he would never be held accountable as a parent may be legal, may be convenient, may be the best way to balance the Kansas budget and may be the best option for the eighth child of the benighted, wrongly unrecognized  Bauer-Schriener union, but it is still just plain wrong.


Pointer: Ann Althouse

Sources: Kansas City Star, Daily Mail

Graphic: Daily Mail

12 thoughts on “Ethics Mess In Kansas: The Lesbians and the Sperm Donor

  1. Full disclosure: I’m the mother of a child conceived using donor sperm.

    I agree with you, in general, that ruling Marotta as the father and making him financially responsible is a bad result. It’s one that could have been avoided by some fairly basic research, as one of the first things I learned was that a private agreement of this sort is generally unenforceable.

    Marotta, Bauer, and Schriener either did not do their research, or were convinced that the potential issues would never come up – that Marotta would never seek visitation or custody and that Bauer and Schriener would never seek child support, so it did not matter if he was still legally the father.

    The laws in the area of assisted reproduction are woefully incomplete and inconsistent from state to state, as politics attempts to keep up with – or hold back – scientific and social change. In my opinion, anyone planning to participate in bringing a child into this world in a nontraditional way has an absolute ethical obligation to research the legal relationship between themselves and the child and do the due diligence. I’m not quite so willing to let Marotta off the hook as “[not] unethical, only naive” for not at least doing a bit of internet research on the issue.

    I agree that the primary problem is that the laws of Kansas did not leave good options for Bauer and Schriener – although one that was apparently not pursued was using a doctor for their insemination, which would have added costs but clarified the legal issues. And, yes, Bauer and Schriener had the additional responsibility to ensure that they could provide for the child they intended to parent. I would say, though, that all three of the individual adults involved had an equal ethical obligation with regard to the need for legal counsel or research to ensure their intended outcome within those laws, and were equally unethical in its absence.

    • Yes, yes and yes. Wise all around. Making a person like Marotta pay such a high price for not fully protecting himself legally, however, just guarantees that sperm donors will become rarer and less reliable. An unintended consequence when a nanny state really has to pay for nannies.

  2. Note that there is caselaw from the time before the law (explicitly protecting sperm-donors under specific circumstances) was passed that says that sperm donors have neither visitation rights nor financial responsibilities..

    This is purely politically motivated, in order to stick it to the gays.

    It’s Kansas, after all.

    Of the 8 children, 4 are adult, living independently – the oldest being 25.

  3. Mern who donate sperm to a sperm bank, are not responsible for the birth of children from their donation, why should this guy be made to be responsible from his donation.??? The women disavowed his responsibility. They ARE the ones who should be responsible.

  4. As the father of Miss Schreiner’s youngest two children, I find all of this unsettling. I am currently in a legal fight with her in order to have my rights enforced as a father and can get no help what so ever. There is noone saying you have rights as a father when she had me escorted from the hospital, not even allowing me to hold our baby. So I say the system as a whole is broken. Everyone says “Poor William” and I agree: he never intended to be the baby’s father. But I’ve seen him interact with the child and know some part of him regrets not being in her life, and obviously he is a caring man to raise foster children, and has a loving stable family.

    • No, it’s just BAD luck. Moral luck is when you’re past conduct become worse or regarded as worse because of subsequent developments outside of your control. Marotta did nothing unethical no matter how you slice it. I think he’s a victim and a scapegaot.

  5. This case is quite similar to a “straw buyer” of firearms that are later used in a crime (and there was a crime, because the mom committed perjury about not knowing who is the actual father of the kid). “Straw buyers” of firearms are vigorously punished, and they don’t get to make “ethics” claims against the general rule that “ignorance of the law is no excuse”.

  6. Once upon a time it was unethical to even have a sperm donor. In fact, i am a little pissed off that it is possible, lesbian or not, that a woman could want a child, concieve a child, then go on welfare and expect all of us to pay for this crap. To immigrate to this country you have to have a sponser that can support you. I think if you have a sperm donor you should have sufficient funds or no kid at all. This couple had 8 kids and everyone feels sorry for them and yet they beat up other non-lesbians for having a bunch of kids. I am not against lesbians, but Gay men can’t have these circumstances and their choices are limitied.

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