A divided Kansas Supreme Court has rejected a first-of-its-kind case of sperm donor rights, ruling that a donor who wants to act as a father must establish paternity by written agreement with the mother.

The 4-2 majority decision dashed the fatherhood hopes of Daryl Hendrix, an unmarried attorney who donated sperm to a friend. He filed a paternity action after Samantha Harrington, also an unmarried lawyer, had twins in May 2005, claiming they had an oral agreement that she would recognize him as the father.

A Kansas statute that treats a sperm donor “as if he were not the birth father of a child thereby conceived, unless agreed to in writing by the donor and the woman” does not violate Hendrix's rights of equal protection and due process, the majority said.

But one of the dissenters, Justice Nancy L. Caplinger, “strongly” disagreed, finding the statute -- K.S.A. 38-1114(f) -- unconstitutional because fundamental rights “may be waived only through an intentional, free, and meaningful choice.”

“Here, the record indicates D.H. [Hendrix] was not even aware of K.S.A. 38-1114(f), much less its requirement that he must enter into a written agreement formalizing his intent to parent his child before he provided his sperm to S.H. [Harrington],” she said.

The case is the first in the nation to test whether a known sperm donor can assert parental rights in the absence of a written agreement. The Washburn University School of Law's Children and Family Law Center, which filed an amicus brief on Hendrix's behalf, argued that known donors have parental rights simply by virtue of biology.

Harrington has said she always intended to be a single mother and, on her side, a group of family law professors warned that the Center was advocating “a radical departure from widely accepted notions of parental responsibility, privacy and constitutional law.”

Laws that absolutely bar sperm donors from asserting parental rights have been struck down in Oregon and Ohio. But the Kansas Supreme Court majority ruled that the donor's ability to “opt out” of the paternity bar by written agreement renders K.S.A. 38-1114(f) constitutional.

Justice Carol A. Beier, who wrote the majority opinion, also refused to distinguish between known and anonymous donors, saying,

If, as the Center argues, genetic relationship must be destiny, then an anonymous donor with no intention to be a father would nevertheless automatically become one. It is evident to us the legislature chose an alternate arrangement.

Caplinger, however, interpreted K.S.A. 38-1114(f) as an “opt in statute” that unconstitutionally required Hendrix to “take affirmative action to preserve his fundamental right to parent.”

“It is apparent that D.H. seeks to be a loving and supportive parent to the two children he has biologically fathered–two children who have no other putative father,” she concluded. “And yet, by operation of a statute of which D.H. was unaware, his rights to parent these children were cut off before the children were conceived with the use of his sperm.”

By Matthew Heller
10/29/07