Several people have voiced concern recently after a case in Kansas began garnering media attention. A lesbian couple in Kansas conceived a child through the use of artificial insemination. Rather than use a physician, the couple chose their donor through private means. The parties entered into a formal agreement in which the donor waived any parental rights and the couple agreed to hold the donor harmless for any child support payments demanded of him by any other person or entity, public or private. The artificial insemination was done at home with the donor’s sperm and the couple conceived a baby girl.
Later, the couple broke up but continued to co-parent the child. Subsequently, one of the women became ill and could not work. At that point, the biological mother applied for state health insurance with the State of Kansas. The Kansas Department of Children and Families demanded that a father be listed on the application in order to provide the requested health insurance. At that point, the State of Kansas filed a claim against the sperm donor, requiring him to pay child support, though both of the child’s moms were, and remain, opposed.
Under Kansas law, a donor who provides semen to a licensed physician for use in artificial insemination of a woman other than the donor’s wife is treated in law as if he were not the birth father of a child thereby conceived, unless agreed to in writing by the donor and the woman. Kan. Stat. Ann. § 23-2208(f). Because there is no such provision for artificial insemination done through private means, the State of Kansas has refused to treat the donor as anything but the biological father of the child, regardless of the contract between the parties. The non-biological mother has offered to pay the child support that would be applicable if she were treated as the parent of the child. However, Kansas has refused because to do so would essentially recognize the couple as the legal parents and that Kansas will not do.
Questions have been raised as to whether the situation currently playing out in Kansas could happen here. Though Colorado law does offer more protection to couples similar to the Kansas couple, its law in this area does contain a measure of ambiguity.
Colorado has a statute similar to that of Kansas providing: “If, under the supervision of a licensed physician or advanced practice nurse and with the consent of her husband, a wife consents to assisted reproduction with sperm donated by a man not her husband, the husband is treated in law as if he were the natural father of a child thereby conceived. … Both the husband’s and the wife’s consent must be in writing and signed by each of them. …” Colo. Rev. Stat. Ann. § 19-4-106(1). However, unlike Kansas, the Colorado statute also includes an additional provision: “A donor is not a parent of a child conceived by means of assisted reproduction….” Colo. Rev. Stat. Ann. § 19-4-106(2).
In interpreting this statute, Colorado courts have found that “[t]he primary purpose of section 19-4-106 is to provide a legal mechanism for married and unmarried women to obtain a supply of semen for use in artificial insemination and, in the case of married recipients, to make clear that legal rights and duties of fatherhood are borne by the recipient’s husband rather than the donor.” In the Interest of R.C., 775 P.2d 27, 30 (Colo. 1989) (emphasis provided). The court held that while subsection (2) precludes a finding of paternity toward the donor if the donor is anonymous, there is no per se finding if the recipient uses a known donor. Id. at 33. In the situation of a known donor, evidence regarding any pre-insemination agreement between the parties is relevant to determine whether the donor should be considered a legal parent of the conceived child. Id. at 35.
In the R.C. case, unlike the facts in Kansas, the donor brought suit attempting to establish his parental rights to the conceived child. Still, based on the reasoning in R.C., it would appear that if the same facts as the Kansas case occurred in Colorado, the parties would be able to assert their pre-insemination agreement as a defense to any finding that the donor was a legal parent and/or was under any parental financial obligations. What remains unclear, however, is whether and to what extent physician assistance/supervision is required in order for § 106(2) to apply. See id. at 37.
Significantly, Colorado law also allows for second parent adoptions, an option not available in Kansas. Using second parent adoption, when a child is born to a sole legal parent, the non-biological parent can be added to the child’s birth certificate, regardless of gender or relation, as the second legal parent. Colo. Rev. Stat. Ann. § 19-5-203. Those two individuals are then considered the legal parents of the child. Id.
It is clear that Colorado law certainly provides some protections to individuals and families considering assisted reproduction services. It is also equally clear that individuals and families must take advantage of those options in order to protect their own legal interests and ultimately, those of their conceived children.
For more information on the Kansas case, check out this article in Slate.