GOVERNOR PROPOSED SUBSTITUTE INSTEAD OF APPROVING:
APPROVED BY GOVERNOR:
GOVERNOR PROPOSED SUBSTITUTE INSTEAD OF APPROVING:
APPROVED BY GOVERNOR:
UPDATED APRIL 10, 2018
MODIFICATION BY THE GOVERNOR
ENACTED, SIGNED BY GOVERNOR
KILLED (incl. passed by, stricken, tabled, continued to next year ...)
Compiled by John Crouch, updated by John Crouch and Sarah Araman
In a case that has gone on for years now, a couple found a sperm donor on craigslist instead of going to a sperm bank or fertility clinic. States have laws that say sperm donors won't be considered fathers, but they require several procedures, standards and safeguards, and a licensed clinic must be responsible for the procedure.
Some media coverage has perpetuated the inhumane, patriarchal, but still widespread notions that children are property to be bought and sold by contract, and that child support is a trade-off for visitation. Fox's WHTI TV 10 in Terre Haute, Indiana says in today's story on the case, "Kansas sperm donor fights back after state forces him to pay child support":
"'Angie and Jennifer are the parents,' Marotta said. The state of Kansas won’t accept that. Despite the fact that the lesbian couple and Marotta signed a contract giving up all parental rights to the child."
"According to Marotta his lawyer has only found one other case in the United States where this has happened, but in that case the sperm donor had changed his mind and requested visitation with the child. Something Marotta’s never wanted, or asked for."
The social services spokesperson quoted in the article has it exactly right:
“If an individual wants to have the protections of a sperm donor, he needs to follow the law. ... Parental rights can not be signed away without following adoption laws.
And that's exactly what those involved should have done, at least after Kansas's Supreme Court upheld a trial court decision recognizing gay co-parenthood in February of 2013. The Court's opinion in that case shows how it differs from this one:
The coparenting agreement before us cannot be construed as a prohibited sale of the children because the biological mother retains her parental duties and responsibilities. The agreement is not injurious to the public because it provides the children with the resources of two persons, rather than leaving them as the fatherless children of an artificially inseminated mother.
I am for freedom of contract and against government interference, far more than almost anyone else I know. But your freedom of contract ends where your children's fundamental rights and interests begin. Including the child's right to parents, recognized in the UN Convention on the Rights of the Child.* Because of that, courts and other government agencies are in charge of investigating and approving adoptions. That authority is exercised pretty minimally in cases that are based on mutual consent, particularly where one biological parent remains a parent, but it is still crucial for the government to have a role in any change so fundamental as changing who a person's parents are. This gives the state and judges a chance to oversee the process, to verify the parents' informed consent, to step in when it looks like the adoption is not in the child's interests, and to have uniform official records confirming legal parent-child relationships.
*Relevant Parts of the United Nations Convention on the Rights of the Child:
The family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community." (CRC Preamble)
The child ... shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents. (CRC Art. 7)
States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference. (CRC Art. 8(1))
States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence. (CRC Art. 9(1))
States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests. (CRC Art. 9(3))
States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child. (CRC Art. 14(2))
"Sperm donor in Fremont feeling heat from feds" - San Franciso Chronicle 12/19/11, via Ron Nelson. See also "Secret international sperm donor/Alabama politician wants to 'be around for these children' in New Zealand"
A child cannot have three legal parents under the Uniform Parentage Act, a California appeals court ruled May 6 in “In Re M.C.” — remanding the case to the Los Angeles trial court which must pick two of the three as legal parents before proceeding with the further question of where to place the child.
Although in the abstract, it pits gay rights against parents’ rights, this is the kind of case that ought to be decided based on its particular factual situation. This is not the case of an ideal, cute couple and their cool, adorable sperm-donor friend, which the TV version would be. The opinion says the mother had a “stormy relationship” with her domestic partner, with “several episodes of domestic violence.” The mother left her, met the father, got pregnant by him, and then lived with the father for a few weeks. She left him to reconcile with her partner, and they married before the child was born. Three or four weeks later, she left again. The father, meanwhile, had supported the mother when she lived together, and later sent money and a signed paternity declaration. When a new boyfriend attacked her wife with a knife, the baby ended up in state custody, the mother went to jail, and the father asked for custody.
The appeals court said that all three were “presumed parents” under the UPA, but only two could be the actual parents, and that the lower court should now apply the test from the case of “Kelsey S.” 4 Cal. Rptr. 2d 615 (1992) to see if we was a “constitutionally presumed father” -- one who “comes forward at the first opportunity to assert his parental rights after learning of the child’s existence, but has been prevented from becoming a statutorily presumed father under [UPA] Sec. 7611 by the unilateral conduct of the child’s mother or a third party’s interference.” Section 7611 requires the father to have “received the child into his home” -- something that many unwed fathers might not have occasion to do even if they are available and involved parents.
A column in Time Magazine by Po Bronson says stepparents should have the legal rights of parents -- though it doesn't specify if that means all the same rights, or a partial or subordinate set of rights. The column is inspired by a recent Washington State supreme court opinion legally recognizing as "de facto parent" a lesbian who was the lifelong primary caretaker of her partner's child, who they had decided to have as a couple.
Some problems with the stepparent rights idea:
- You give someone rights, often that means taking away someone else's. The stepparent's rights would dilute those of the natural parents (in the model Bronson proposes, where the stepparent becomes a third or fourth parent).
- We already have an objective, conscious, consent-based mechanism people can use to make a stepparent into a full-fledged legal parent -- stepparent adoption. It is usually used only when one natural parent consents and/or has willingly gone for years without having any contact with the child. As Bronson points out, this is available, but it always subtracts a parent before adding one. He wants children to have three. Or more?
- Where can we draw the line, in a political environment that is so hostile to any line-drawing? Would the stepparent have to be married to a parent? Or to another stepparent formerly married to the natural parent? Does the non-custodial parent's spouse also qualify? If you can't draw a line at marriage, how will everyone involved know whether the relationship is serious enough that the stepparent has made like the Velveteen Rabbit and become real?