Why Not To Use A Turkey Baster (For Purposes Other Than Basting Turkeys)
Always consult an attorney and use a licensed physician when engaging in third-party reproduction.
Gilmore Girls. Before digging into the latest significant ART-related court ruling, I can’t help but address the latest pop-culture show featuring surrogacy for our amusement. Four new episodes of Gilmore Girls came out on Netflix last Friday, and I’ll just say … ugh!
I’ll try not to spoil anything, but the show did a terrible job on the topic of surrogacy. Of course, I get it. They are trying to be funny. But the references to surrogates as “breeders” plays into dismissive notions of exploitation and demeans surrogates themselves, who are often not in it just to make a quick dollar. At the same time, the show is lazy about confusing surrogates—who do not offer their own genetic material, but instead their uteruses—with egg donors. (For those of you who remember Rory’s friend Paris, she now runs a surrogacy agency, and tells a character that “we got blondes, we got brunettes… we got Jews.”)
Not to mention, the show had the potential intended father acting like a big dumb guy™, and constantly asking if he was going to be forced to sleep with potential surrogates. I love Gilmore Girls, but this plotline was cringe-worthy. And I hope other TV shows will just steer clear of the topic if they can’t portray surrogacy accurately.
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Now, on to the real-life legal impacts of assisted reproductive technology and the law. Yesterday, a Kansas court ruled on one of the most notorious cases out there when it comes to at-home (often called “turkey baster”) insemination.
The Craigslist Sperm Donor. In March 2009, William Marotta of Topeka, Kansas, responded to a Craigslist ad from a local lesbian couple looking for a man to donate sperm so they could have a child together. Marotta agreed to help. He signed a contract provided by the couple without legal representation (obtained presumably from Mr. Google, Esq.). The contract stated that Marotta was not assuming any legal or financial obligations to any child born from the donation, and that he would deliver his sperm to the couple.
The donation was successful, and resulted in a baby girl for the couple. Marotta said he did not know that the couple was not using a doctor to perform the insemination (despite delivering three cups of the good stuff directly to the couple), nor did he know that Kansas law requires that a doctor perform the insemination in order to comply with the donor statute.
The State Goes After the Donor. Most donors fear the recipients of their sperm or eggs will come after them for child support. Here, the recipients agreed that the Marotta was not the father and should not be designated as such. Unfortunately, the state disagreed. One of the mothers – referred to as “A.B.” by the court (Marotta is also referred to by initials in the opinion, but has frequently spoken about the case, making his identity no secret) – became unable to work and turned to Social Security disability insurance benefits. The biological mother “J.L.S.” then applied for and received benefits with the Kansas Department of Children and Families. The state subsequently proceeded to seek reimbursement of benefits and continued child support from Marotta.
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The state petitioned for the District Court of Shawnee County, Kansas to legally recognize Marotta as a legal parent of the child, since his sperm donation did not comply with the state donor safe harbor, which requires a donation to take place under the supervision of a licensed physician. And further, Marotta met the legal presumption of parenthood based on a “probability of 97% or greater that the man is the father of the child,” pursuant to genetic tests ordered by the court about two years after the case began and after a best-interest hearing.
Not About The Money. The state was asking Marotta to pay $1,625.92 and ongoing child support. That amount is minuscule compared to Marotta’s legal fees to fight the state. But he notes that it’s not about the money, but the principle of the matter. Also, there was another person everyone (besides the state) agreed should be the legal parent of the child – A.B.
Multiple Presumed Parents. The briefing submitted to the court showed that Marotta, J.L.S. (the biological mother), A.B. (the biological mother’s partner at the time of the birth, and continual co-parent of the child), and the guardian ad litem all agreed that A.B. should be the child’s second parent, not Marotta. Fortunately, A.B. also fell under a Kansas presumption of parenthood – when read to incorporate gender-neutrality as recognized by the state of Kansas — of a “man notoriously or in writing recogniz[ing] paternity of the child.” And in such a case “where two or more presumptions… conflict,” the court shall determine the legal parent based on “the weightier consideration of policy and logic, including the best interest of the child.”
Aside from A.B.’s inability to financially support the child, all other factors (including being known by the child her whole life as her parent!) pointed to A.B. being the child’s legal parent and not Marotta (whom the child did not know).
The court concluded and ordered that the state’s petition to recognized Marotta as legal parent be denied and A.B. be declared the legal parent. The taxpayers of Kansas, sadly, lost their $1,625.92.
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Joe Booth, A.B.’s attorney, stated, “I got mad and got involved in this case three years ago as a pro bono project. It hit a nerve. First, I did not like A.B. being threatened because she was in a same-sex relationship and had a family, but was being told that was wrong by our government. But, I really did not like a little girl being told that her family had to be torn up to serve someone else’s standards. I am so very thrilled this little first grader’s family is safe now.”
Lessons Learned. Of course, my favorite lesson: always consult an attorney when engaging in third-party reproduction. Next, use a licensed physician. Even if an applicable statute doesn’t require it, there are other concerns, like sexually transmitted infections. In this case, Marotta was likely only saved by the fact that there was a competing second-parent. If the biological mother had been single, he likely would have been on the hook for 18 years.
Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning, and Co-Director of Colorado Surrogacy, LLC, a surrogacy matching and support agency. You can reach her at babies@abovethelaw.com.
