In the Interest of K.M.H.

Brief Fact Summary.

A woman conceived through artificial insemination and gave birth to twins.  The sperm donor claimed he had an oral agreement with the mother of the twins to act as their father, and he sought to have his parental rights recognized.  The constitutionality of the Kansas artificial insemination statute was upheld by the court, which denies paternity rights in cases where there is no agreement in writing.  The court held there that paternity rights did not exist without a written contract.

Synopsis of Rule of Law.

Under the Equal Protection and Due Process Clauses of the Kansas and federal Constitutions, the Kansas artificial insemination statute is constitutional.

Facts.

A woman, S.H. (Defendant), conceived through artificial insemination and gave birth to twins.  The sperm donor, D.H. (Plaintiff) claimed he had an oral agreement with the mother of the twins to act as their father, and he sought to have his parental rights recognized.  Defendant filed a “child in need of care” petition to establish that the donor had no parental rights under Kansas law.  The two are not married.  The constitutionality of the Kansas artificial insemination statute was upheld by the court, which denies paternity rights in cases where there is no agreement in writing.  The court held there that paternity rights did not exist without a written contract.

Issue.

Under the Equal Protection and Due Process Clauses of the Kansas and federal Constitutions, is the Kansas artificial insemination statute constitutional?

Held.

(Beier, J.)  Yes.  Under the Equal Protection and Due Process Clauses of the Kansas and federal Constitutions, the Kansas artificial insemination statute is constitutional.  The Kansas artificial insemination statute is based in part on the 1973 Uniform Parentage Act, which did not address paternity of a sperm donor when an unmarried woman conceives a child through artificial insemination.  [Section 5 of the Act states in part that “[t]he donor of semen provided to a licensed physician for use in artificial insemination of a married woman other than the donor’s wife is treated in law as if he were not the natural father of a child thereby conceived.”]  Kansas removed the word “married” from the 1973 Act, so that its statute contained a complete bar to paternity for any sperm donor not married to the recipient, whether the donor was known or not.  But the Kansas legislature also modified the Uniform Parentage Act (UPA) language to provide that a sperm donor and recipient could choose to opt out of the donor paternity bar by written agreement.  The Kansas AI statute provides an escape clause in that the allowance for a written agreement to grant a sperm donor parental rights and responsibilities would in turn provide support for finding the statute constitutional, where an absolute bar to rights might have been unconstitutional.  The statute’s requirement that any opt-out agreement between an unmarried mother and a known sperm donor be “in writing” does not result in an equal protection or due process violation, either.  Regarding the equal protection claim, even assuming that Defendant and Plaintiff are truly similar situations, the statute’s gender categorization serves legitimate interests of the state.  It protects men who donate sperm whether they want to be involved in the lives of the children who are born or not.  It protects women recipients as well by preventing potential claims of donors to parental rights and responsibilities where there is no written agreement.  Regarding the due process claim, the requirement of a writing does not change what is an otherwise constitutional statute into one that violates Plaintiff’s substantive due process rights.  The statute does not cut off existing rights, but ensures no attachment of rights.  The law may not be wise, however, it is constitutional.  Affirmed.

Dissent.

(Caplinger, J.)  The statute is unconstitutional as applied in this case because it violates Plaintiff’s fundamental right to be a parent to his children without due process of law.  Fundamental rights must be waived, not passively lost because of failure to execute a contract asserting them.  Also, Plaintiff may not have been aware of his responsibilities under the statute.  This is a case of a presumed father who wants to be a participant in the raising of his children, and rather than receiving protection under the Due Process Clause, he has been subjected to the application of a statute he was not aware of, which required him to choose fatherhood before he even donated his sperm.  This case should be remanded to consider all evidence relevant to the existence of an agreement between the parties.

(Hill, J.)  The application of this statute is not in the best interests of the children and someone needs to speak for them in these proceedings. 

Discussion.

The court actually considered six issues: (1) whether the district judge erred in ruling that Kansas law would govern, since two inseminations took place in Missouri; (2) whether the district judge erred in finding the Kansas AI statute constitutional; (3) whether the district judge erred in interpreting and applying the “provided to a licensed physician” language of the Kansas AI statute; (4) whether the district judge erred in determining that Defendant’s petition did not satisfy the requirements of a writing in the Kansas artificial insemination statute; (5) whether the Kansas AI statute granted Plaintiff parental rights; and (6) whether equity demanded reversal of the district court.  The most important and interesting question here regards constitutional law and its interplay with the Statute of Frauds.