Law & Order
01.10.13 9:45 AM ET
The Sperm Donor Trap: Should Your DNA Follow You for Life?
William Marotta thought he was being a good samaritan when he responded to a $50 ad on Craigslist seeking a sperm donor. He provided a description of himself—blond, blue-eyed, healthy—and even offered up his swimmers at no cost. Marotta met with the prospective parents, a lesbian couple, who lived nearby in Kansas, and signed a contract ensuring his beneficent deposit wouldn’t land him in any sticky situations. He then handed over the fruits of his manual labors, wiped his hands clean of any responsibility, and walked away.
Or so he thought. Nearly four years later, the parents of his daughter have split up, one has lost her job, and the state of Kansas is demanding that Marotta, now 46 years old, step in with $6,000 worth of child support. The tawdry nature of the case—two lesbians pressured by a red-state judiciary to hit up their supposed-to-be-anonymous baby daddy for money—has grabbed national headlines, with most liberal media outlets crying homophobia and sympathizing with the odd trio. After all, isn’t it clear that the state isn’t respecting the structure of this family just because there happen to be two moms?
But the truth of the matter, in both legal and ethical terms, is more complicated. Experts in the field of sperm donation say the state is simply following sound legal guidelines—when a child needs financial support, it’s common practice to seek out its biological father. According to bioethicists, that’s not necessarily a bad thing; these laws are designed to protect donor babies, not donor parents. And in these heady days of artificial baby-making, the whole affair serves as a useful reminder that no contract can ever sever your relationship to your sperm—or any humans that those little guys might spawn.
Back in 2009, Angela Bauer and her then-partner, Jennifer Schreiner, presented Marotta with a contract that they believed absolved him of parental rights. With no lawyer present, he signed an agreement “that he would not demand, request, or compel any guardianship, custody or visitation rights.” In turn, Bauer and Schreiner vowed “to indemnify William and hold him harmless for any child support payments demanded of him by any other person or entity, public or private,” as their contract states.
Cut to last year. Now separated, Bauer had lost her job, and Schreiner, who had carried the child, applied for public assistance to get their daughter health insurance. The Kansas Department of Children and Families agreed to help, but only if Schreiner identified the child’s father so that the state could get him to pitch in child support. Schreiner reluctantly gave them Marotta’s name.
That contract the three had signed? It was moot. Kansas doesn’t specifically recognize a donor’s legal rights—let alone the stipulations of a self-drawn contract—when no doctor is involved in the insemination procedure. Bauer and Schreiner did consult their family practitioner about going through a sperm bank, but ultimately went the do-it-yourself route when the doctor deemed them “unfit” to raise a child. However off-putting—and quite possibly homophobic—that doc may have been, Bauer recently told the Topeka Capitol-Journal that they chose to inseminate at home primarily because they wanted the experience to be “personal and about the two of us.”
Benoit Swinnen, one of Marotta’s attorneys, is convinced that the state’s pursuit of his client is politically motivated. “This case opens the door to new family structures and alternative ways of artificial insemination,” he told The Daily Beast, things he says Kansas’s conservative administration is wary of legitimizing.
But experts in the field point out that the law was in place long before Marotta came along. “State aid workers aren’t looking for a political agenda, they’re looking for a dad, and in this case they found a donor,” said Corey Whelan, a program director for the New York-based American Fertility Association who advises LGBT couples on third-party reproduction.
Whelan acknowledges that Kansas’s attitude toward the LGBT community is far from progressive, but she insists social stigmas have little influence on how this trio has been treated.
“Even if the two women were married, the law still states that sperm from a donor needs to be handed off to a doctor in order for the donor to be protected. These are two completely separate issues. That being said, if this case can be utilized in a way that moves an appropriate political agenda forward, I’m all for it. But I’m not willing to vilify the state just to prove a point.”
Donor laws—like adoption laws—vary from state to state. Before the rise of same-sex parenting, IVF, and other contemporary social and scientific issues shaping fertility treatment today, many state laws were written to protect married women who needed sperm donors, Whelan says. Now that there’s been a sea change in our culture in which both single women and lesbian couples who may or may not be legally married are seeking donors, the term “married woman” makes many of these laws outdated.
But the process of changing laws is neither quick nor easy, and prospective donor parents have to abide by them if they want their child to be taken care of—even if that means putting the sperm daddy back on the hook.
It wasn’t what Marotta signed up for, but according to a renowned bioethicist, he could have seen it coming had he done his homework.
“You can contract whatever you want, but you’re not contracting your way out of responsibility to any children you create,” said Arthur Caplan, director of medical ethics at NYU Langone. Why should taxpayers be forced to pay child support if a noncustodial parent can foot the bill? “If your genes are there, the state is going to find the bank account linked to those genes,” said Caplan. “Having a genetic tie to a baby has a huge history in our country’s judiciary system and morality, and that’s not waived easily by a donor saying he signed a paper that let him off the hook.”
Conversely, if Marotta or any other sperm donor suddenly wanted visitation rights to his biological child—particularly if his biological child’s family was in the midst of divorce or any other hardship—he’d likely have a legal leg to stand on.
Caplan cites other scenarios that many sperm and egg donors don’t often think about when they sign away their DNA.
Let’s say you make a baby knowing you’re going to die, or you deposit sperm before you’re deployed to Afghanistan and are killed in combat. “The government will come after your estate to take care of any child or children you left behind. Your bank account doesn’t end when you end.”
A motion to dismiss Marotta’s case on Jan. 8 was pushed back to April earlier this week due to scheduling issues. “From what I’ve discussed with my lawyers, there’s not a lot of similar cases like this out there,” Marotta told The Daily Beast, “which is part of the reason why we think this is not going to be resolved quickly.”
He added that he had extremely limited contact with Bauer, Schreiner, and his daughter. “Much of what you know about this child and their lives is what I know,” he said.
But Marotta’s case is not as unique as he thinks. In June, 2011, a Pennsylvania Supreme Court forced a sperm donor to pay $1,520 in monthly child support, despite the mother’s previous promises that he wouldn’t be involved in that child’s life.
“The most interesting thing about this case is that, despite the media uproar, it’s not a surprise,” said Caplan. “This has been going on for 20 years, and courts generally rule in favor of the child’s best interest, which means finding someone who can provide for the child. Any genetic connection will be instantly invoked.”
Or, simply put: beware where you put your DNA, because it may come back to haunt you.