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Kansas Supreme Court Selected Opinion Summaries
In the Interest of K.M.H., a child under age eighteen, and K.C.H., a child under age eighteen, Appeal No. 96,102
October 26, 2007

Summaries and press releases are prepared by Ron Keefover, Office of Judicial Administration, Kansas Judicial Center, 301 West 10th, Topeka, KS 66612-1507 (785-296-2256), e-mail: keefoverr@kscourts.org.

RE: Appeal No. 96,102: In the Interest of K.M.H., a child under age eighteen, and K.C.H., a child under age eighteen

The Kansas Supreme Court today upheld legislation governing artificial insemination, ruling that a known sperm donor does not acquire parental rights unless there is a written agreement with a child's mother.

The decision affirming the statute's constitutionality was the first of its kind in the nation, arising out of consolidated actions filed by a mother of twins conceived through artificial insemination and by the known sperm donor for the procedure.

The mother and donor disagreed on whether they had entered into an oral agreement giving rise to parental rights for 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 statute's requirement of a written agreement constitutional under both state and federal due process and equal protection provisions.

She wrote that "all that is constitutional is not necessarily wise. 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 concurring opinion was filed by Chief Justice Kay McFarland, who said the provision requiring the 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 with the Supreme Court on special assignment for this appeal.

Judge Caplinger would have found the statute unconstitutional because, in her view, the donor had a fundamental right to parent and the statute's requirement of a written agreement resulted in a passive waiver of that right. "Therein lies the constitutional problem . . . . Fundamental rights must be actively waived, rather than passively lost to inaction," she wrote.

She was joined by Judge Hill, who agreed that the statute was unconstitutional when applied to a known sperm donor. He also questioned whether the best interests of children born as a result of artificial insemination were being served by the statutory design.

Justice Beier wrote in the majority decision that the significant distinction between the Kansas law under consideration today and previously examined provisions from other states is Kansas' specific opportunity for a donor and recipient to opt out of the donor paternity bar through written agreement.

On the equal protection claim, she acknowledged that the statute "draws a gender-based line between a necessarily female sperm recipient and a necessarily male sperm donor . . . . the female is a potential parent or actual parent under all circumstances; . . . . the male will never be a potential parent or actual parent unless there is a written agreement to that effect with the female,"

She also observed the male's "ability to insist on father status effectively disappears once he donates sperm. Until that point, he can unilaterally refuse to participate unless a written agreement on his terms exists. After donation, the male cannot force the fatherhood issue. The female can unilaterally decide if and when to use the donation for artificial insemination and can unilaterally deny any wish of the male for parental rights by refusing to enter into a written agreement."

The legislature's choice to treat men and women differently in this situation, the court held, is substantially related to legitimate legislative purposes and important governmental objectives, including encouragement of early resolution of parental rights and responsibilities arising out of this relatively modern method of reproduction.

On the due process claim, Justice Beier wrote that the statute also passed muster. Its requirement of a written agreement gives a prospective sperm donor "complete autonomy to refuse to facilitate an artificial insemination unless he gets an agreement in writing to his paternity terms. This is more than most fathers, wed or unwed to their children's mothers, can ever hope for."

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 S. Rosen not participating. In addition to Court of Appeals Judges Caplinger and Hill, former Justice Tyler C. Lockett participated in the decision.