A case before the Kansas Supreme Court has become a key test of the rights of sperm donors who want to be involved with their offspring over the objection of the children's mothers.
ON DEADLINE: How should the court decide?
The dispute, which has drawn national attention, involves a single woman, identified in court papers only as S.H., who gave birth to twins in May 2005 after being inseminated with the sperm of a friend, identified as D.H.
After the mother made it clear that she did not intend to share parenting, D.H. sued to establish paternity. He lost in a trial court because of a Kansas law that says the donor of sperm provided for artificial insemination is not the legal father of the child unless the donor and mother agree to it in writing.
The major question in the case is whether requiring such written agreements in cases involving sperm donors known to the mother, not anonymous donors from sperm banks, violates the donor's constitutional rights as a parent. Like Kansas, many states have legal hurdles for donors seeking parental status.
The case arises at a time of increasing advances in reproductive technology. According to the Centers for Disease Control and Prevention, the numbers of women being impregnated with eggs fertilized outside the womb is significantly on the rise. There are no reliable statistics on methods of conception with donated sperm.
"It's clearly a broadening phenomenon," New York University sociology professor Judith Stacey says of artificial insemination with donor sperm. "All of this is tied to changes in the family, including women choosing to marry later and the gay and lesbian movement. What hasn't changed is women's desire to have children."
Most sperm donors are anonymous and waive parental rights. The move typically shields donors from demands for child support and protects mothers' privacy.
However, when the donor and the mother know each other, different expectations and legal complications can arise, as is the Kansas case and others in recent years from California to Pennsylvania. The cases reflect the lack of uniformity in laws regarding sperm donors, says American University law professor Nancy Polikoff, one of 20 family law professors who filed a brief in support of the Kansas mother. They say states traditionally have had broad latitude to define parentage on factors other than biology, such as marriage.
"Most of the time, even with a known donor, there is not an intention to be a parent," Polikoff says.
Among those backing the donor in the Kansas case is Linda Henry Elrod, director of the Children and Family Law Center at Washburn University law school in Topeka.
Elrod said the Kansas law should not treat anonymous and known donors the same: "A man who is the known genetic father and who steps forward to accept parental responsibility for his children automatically has those rights as a matter of constitutional law."
The Kansas Supreme Court is expected to rule by February.