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To be Argued by
Caitlin Rooney
Kansas v W.M.
Appellant Brief
No.
In The
Supreme Hanson Court
William Marotta
Appellant,
J.L.S. and M.L.B.S., by and through
Her next friend, J.L.S.
Necessary Third Party,
v.
State of Kansas, Ex Rel., Secretary,
Department for Children and
Families
Petitioner
ON WRITE OF CERTIORARI
FROM THE KANSAS DISTRICT COURT
THIRD DISTRICT
BRIEF FOR APPELLANTS
Caitlin A. Rooney
Counsel for Appellant
280 Boyer Avenue
Walla Walla, WA 99362

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I. Preliminary Statement:
This is an appeal of the Third Kansas District Court decision on January 22, 2014 ordering
William Marotta to pay child support to the child born from his donated sperm. The appellant
seeks to be declared a sperm donor exempt from parental obligations including child support
to M.L.B.S.
II. Questions Presented:
Whether this Court should overturn the decision in State of Kansas v. W.M., P 2:55 (2014)
and rule that sperm donor William Marotta is exempt from parental responsibility for
M.L.B.S. under K.S.A. 23-208(f).
III.Facts of the Case:
In 2009, A.B. and J.L.S., a same-sex couple, put an advertisement on the
website Craigslist seeking a private sperm donation. W.M. responded and met the couple in
person, at which point A.B. and J.L.S. presented him with a Sperm Donor Contract, which he
took home to review. A.B., J.L.S., and W.M. all signed the contract. W.M. visited the
women’s home to deliver his semen in a specimen cup. The women inseminated J.L.S. at
home without a licensed physician and J.L.S. gave birth to M.L.B.S. A.B. and J.L.S. later
separated but continued to co-parent M.L.B.S.
In April, 2009, J.L.S. began applying for benefits for M.L.B.S. with the
Kansas Department of Children ad Families (“DCF”). DCF discontinued the benefits to
J.L.S. because she failed to provide the Sperm Donor Contract after indicating the biological
father was a sperm donor. When she did provide it, DCF saw W.M.’s name and realized this
was not an anonymous sperm donation.
IV.Procedural History:
In 2012, DCF filed a Petition to Determine Paternity and ordered W.M. to pay
$6,000 of child support for M.L.B.S. The Respondent denied that he owed child support and
attached a copy of the Sperm Donor Contract. A Guardian ad litem was appointed to
represent the interest of M.L.B.S. The Respondent and A.B. motioned for A.B. to enter the
lawsuit because she was the intended parent of the child, as shown by her signing the donor
contract and co-parenting agreement and by her parenting M.L.B.S. Counsel for A.B. filed a
parenting plan for her and J.L.S. to address the care and custody of the child. The District
Court bifurcated the action and decided to first address the issue of W.M.’s paternity.
The Petitioner argued that since W.M., J.L.S., and A.B. did not use a licensed
physician for the Artificial Insemination (AI), W.M. was not exempt from paternity under
K.S.A. 23-208(f). J.L.S. argued that all three parties clearly intended for W.M. to not be the
father of the child. The G.A.L and A.B. asserted that if the court found W.M. to be the father,
he would replace A.B. as legal parent. On January 22, 2014, Judge Mary E. Mattivi ruled that
W.M. did not meet the requirements to be considered a sperm donor under K.S.A. 23-208(f)
and was thus the legal father of M.L.B.S. and must pay child support.

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I. Argument:
A. The law’s purpose and Court Precedent support a broader interpretation of
K.S.A 23-208(f) that maintains the purpose of ensuring the intent of the parties.
This statute should not be construed to provide an exemption for sperm donors
solely in the instances that involve a licensed physician.
KSA 23-208(f) must be understood in legislative context. The Supreme Court of
Kansas addressed the interpretation of this act in In Re Marriage of Ross 245 Kan. 591 (1989)
783 P .2d 331, “we recognize that it is the intent of the legislature that governs; the court must
give effect to the legislature’s intent even though words, phrases, or clauses at some place in the
statute must be omitted or inserted.” K.S.A. 23-208(f)’s full wording is “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.” The fact that “licensed
physician” is in the statute therefore does not indicate it is a requirement.
Judge Mattivi determined in State of Kansas v. W.M. 12 D 2686 p. 2:55, 8 (2014) that
she did not have to consider the legislative history or context based on her wrongful assertion
that this law is “plain and unambiguous.” However, the importance of using a licensed physician
in this law is not unambiguous. The wording neither makes the physician explicitly optional, as
the judge notes, nor does it explicitly state, as laws do when intending to clearly emphasize
something, that the semen must be provided to a licensed physician and “in no other
circumstance” will the artificial insemination exempt the donor from paternity. Since the
statutory provision is not unequivocally limited to cases involving a licensed physician, it is both
prudent and appropriate to look at the context in which this legislation was formed.
The creators of the 1973 UPA, on which the K.S.A. is based, expressly stated in the

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Comment section of the UPA that section f did “not deal with many complex and serious legal
problems raised by the practice of artificial insemination” but was meant to cover “at least one
fact situation that occurs frequently” and they encouraged the consideration of other issues
related to AI (8, 9). The expressed intent of the drafters runs counter to Judge Mattivi’s mistaken
assertion that there was an “apparently conscious decision by the drafters of the Uniform
Parentage Act to limit the application for the donor non-paternity provision to instances in which
semen is provided to a licensed physician” (Memorandum Decision 10). Judge Mattivi either
failed to take into account or ignored the available information regarding the legislative
objectives. In 1973 and even in 1994 when Kansas adopted this act, the capacity of the Internet
was unfathomable. As such, it was likely assumed that artificial insemination would require the
use of a licensed physician and therefore the language the drafters used to address the issue of
artificial insemination worked within this frame of reference. Surely the drafters would have
expanded the language with the possibilities provided by the Internet. The idea of a couple
completing the entire process of AI without a licensed physician at any stage from finding a
donor to inseminating, as occurred in this case, was not considered at the time. Nonetheless, it
was not precluded from falling under this statute.
At the time the legislation was passed it was assumed that a licensed physician involved
in the artificial insemination process would be readily available to testify to the intent of all the
parties involved, and help avoid disagreements regarding the parties and their respective roles
regarding the child, parenting the child, child support and parental rights. These were all issues in
artificial insemination the UPA was trying to address as part of an effort to meet the best
interests of the child. However, using a licensed physician is not the only way of discerning the
intentions of the parties in artificial insemination. A written contract and the relationship
established between the donor and child serve as evidence for the intent. W.M., A.B. and J.L.S.
all agreed in their Sperm Donor Contract that W.M. would not be required to provide parental

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support. Due to the provision’s likely purpose and the UPA’s open-ended view of the provision,
The Kansas Act adopted cannot be read as considering the licensed physician to be a necessary
piece of the law, in contrast to what Judge Mattivi incorrectly asserted.
The case Jhordan C. v. Mary K., 179 Cal. App.3d (1986), which Judge Mattivi cited to
support her claim that the physician was required in the act, is markedly different from the
present case in that there was not a clear, unanimous intent among the parties to preclude any
paternal role of the donor in that case. First, there was no Sperm Donor Contract delineating the
role of the donor, and not even an unwritten consensus among the parties about that role. Second,
the donor in that case acted as father to the child: with the consent of the biological mother, he
set up a trust fund and visited the child on a regular basis.
In this case, all parties made clear their intention for W.M. to not hold any paternal rights
or responsibilities, and to be completely uninvolved in the child’s life. This is consistent with the
increasingly common use of third party sperm donors for couples who could never become
parents without such assistance. J.L.S., A.B., and W.M. signed a Sperm Donor Contract, which
evidenced their common and clear intent. W.M. also evidenced his intent to not be a father
through his actions. He didn’t have or request substantial contact with M.B.L.S., and he as well
as J.L.S. and A.B. denied the petition for determination of his paternity in this lawsuit. Despite
the one similarity between the cases, they are so markedly different that Jhordan v. Mary C.
should not be used to support a presumption of paternity in this case.
If the District Court’s ruling stands, it will have grave implications. First, it will dissuade
men from donating sperm, since they will fear they will be responsible for child support based on
a narrow legal interpretation in conflict with the intention of the legislation. Second,
necessitating the use of a licensed physician would disproportionately impact low-income people
and lesbian couples. Since completing AI through a licensed physician costs thousands of
dollars, low-income individuals may either be prevented from conceiving a child or be harmed

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financially by doing so. Lesbian couples will be forced to face the prejudice physicians may hold
toward them when completing AI. As J.L.S. and A.B. testified, one of the reasons they turned to
Craigslist was the extremely uncomfortable encounter they had with the doctor with whom they
originally discussed their desire to do AI (Jennifer Dep. at 30). The provision for a licensed
physician was not intended to be a requirement and misinterpreting it in that way will also set a
harmful precedent.