Kansas Supreme Court rules – sperm donor does not acquire parental rights unless there is a written agreement with a child’s mother.

By Michael Hooper The Capital-Journal, October 26, 2007

The Kansas Supreme Court ruled 4-2 today that a known sperm donor doesn’t acquire parental rights unless there is a written agreement with a child’s mother.

The decision affirming the donor law’s constitutionality was the first of its kind in the nation, arising out 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.

Justice Carol A. Beier authored the opinion for the four-person 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.?

A separate opinion was filed by Chief Justice Kay McFarland, who 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.?

Separate dissents were written by Court of Appeals Judges Nancy L. Caplinger and by Stephen D. Hill, who sat on the Supreme Court for this assignment.

Caplinger 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.?

Judge Hill agreed the law was unconstitutional when applied to a known sperm donor. He also questioned whether the best interest of children born as a result of artificial insemination were being served by the statutory design.

The vote on today’s decision was 4-2 with former Justice Donald L. Allegrucci and current Justices Lawton R. Nuss, Marla J. Luckert and Eric Rosen not participating. In addition to Court of Appeals Judges Caplinger and Hill, former Justice Tyler C. Lockett participated in the decision.

Justices Lockett and Robert E. Davis voted with the majority.

“I’m numb,” Hendrix said after hearing the decision. “I’m in disbelief.”

Hendrix has only seen the twins once when they were born, on May 18, 2005, but has never been allowed to hug them.

Hendrix said he would be talking with legal counsel about whether to appeal the case to a higher court.

Attempts to reach Harrington were unsuccessful this morning.

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