The US Supreme Court today decided NOT to hear a case that would have had far-reaching implications for lesbians and single women choosing to bear children. In 2005, a man, Darryl Hendrix, who had donated semen to a woman, Samantha Harrington, who conceived and bore twins, claimed that he should be declared the father of the children, with full rights to custody and visitation. But Kansas law states the following:
"The donor of semen provided 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."
There was no written agreement between the two parties, but the donor claimed that Harrington agreed that he would be a parent. She denied that claim. Given the statute, which clearly excluded him, Hendrix asked the Kansas Supreme Court to rule that the statute was unconstitutional. Last year, the Kansas court ruled against him and said his constitutional rights were not violated. That’s the question the donor asked the US Supreme Court to rule on. The Court has ruled that there are some circumstances under which an unmarried biological father who grasps the chance to function as a father to his children has parental rights protected by the Constitution; under other circumstances biology does not create constitutional rights. The Supreme Court has never spoken on parental rights in a case involving any assisted reproduction technique.
The right-wing Alliance Defense Fund came in on the side of the donor.
Because the Court declined to hear the case, the Kansas ruling stands. Other states considering new laws on assisted conception can go forward without the cloud of a possible Supreme Court ruling on donor’s rights hanging over their heads.
The Kansas statute is not ideal, because it applies only when a doctor is involved in the insemination. That’s a holdover idea from the first statutes on alternative insemination passed in the 1970’s. Modern statutes don’t have that limitation, and self-insemination with donor semen is a common method lesbians use to conceive.
But I love both this statute’s presumption that use of a semen donor means the donor is not a parent AND the possibility in the statute that the two people might agree in writing that he is. For more on my ideal laws for LGBT families, see my post on Blogging for LGBT Families Day.