Appendix — Hendrix v. Harrington (No. 07-1201)

App. 1

DISTRICT CASE NO. 05 JC372+ SN

IN THE SUPREME COURT OF

OF THE STATE OF KANSAS

JEFFREY M. LEVING

LAW OFFICES OF JEFFREY M. LEVING LTD.

19 SOUTH LASALLE ST

SUITE 450

CHICAGO, IL 60603 CASE NO. 06-96102-AS

In the Interest of:

K.M.H

A CHILD UNDER EIGHTEEN

IN THE MATTER OF THE PATERNITY OF:

K.C.H. AND K.M.H. BY AND THROUGH

THEIR NEXT FRIEND, DARYL D. HENDRIX,

APPELLANT,

AND

SAMANTHA HARRINGTON, APPELLEE.

THE COURT HAS TAKEN THE FOLLOWING

ACTION:

MOTION FOR REHEARING OR MODIFICATION

BY DDH.CONSIDERED BY THE COURT AND

DENIED. CORRECTIONS NOTED.

CONSOLIDATED WITH SN CASES 05JC373 &

05D1223

DATE: 12/18/2007 CAROL G. GREEN

CLERK

App. 2

IN THE SUPREME COURT OF THE STATE OF

KANSAS

No. 96,102

In the Interest of K.M.H., a child under age

eighteen,

and K.C.H., a child under age eighteen.

In the Matter of the Paternity of K.C.H. and

K.M.H.,

by and through their next friend,

D.H., Appellant, and S.H., Appellee.

SYLLABUS BY THE COURT

1. When reviewing an appeal from summary judg-

ment, an appellate court must view the evidence in

the light most favorable to the nonmoving party. A

judgment for the moving party should be affirmed on

appeal if there remains no genuine issue of material

fact for trial and the case is appropriate for disposition

in that party's favor as a matter of law.

2. The factors relevant to a constitutional choice-of-

law determination include the procedural or substan-

tive nature of the question involved, the residence of

the parties involved, and the interest of the State in

having its law applied. As long as Kansas has signifi-

cant contact or a significant aggregation of contacts to

ensure that the choice of Kansas law is not arbitrary

or unfair, constitutional limits are not violated. To the

extent a case involves a contractual dispute, Kansas

courts apply the Restatement (First) of Conflict of

App. 3

Laws § 332 (1934), and the doctrine of lex loci

contractus, t.e., the law of the state where the contract

is made governs. A contract is made where the last act

necessary for its formation occurs.

3. Generally the party seeking to apply the law ofa

jurisdiction other than the forum has the burden to

present facts sufficient to show that other law should

apply. Failure to present facts sufficient to determine

where a contract is made may justify a default to

forum law.

4. On the facts of this case, where the parties are

Kansas residents; any agreement that existed between

them was arrived at in Kansas; promises supported by

consideration were exchanged in Kansas and delivered

upon in Kansas; and the subject children were born in

Kansas and reside in Kansas, Kansas law applies,

despite the fact that the artificial insemination

resulting in the children's conception was performed

at a Missouri clinic.

5. An appellate court's review of whether a statute is

constitutional raises a question of law reviewable de

novo. The constitutionality of a statute is presumed;

all doubts must be resolved in favor of its validity, and

it must clearly appear that the statute violates the

Constitution before it can be invalidated.

6. The guiding principle of equal protection analysis is

that similarly situated individuals should be treated

App. 4

alike. A statutory gender classification is subject to

intermediate, or heightened, scrutiny. In order to pass

muster under the federal and state equal protection

provisions, a classification that treats otherwise

similarly situated individuals differently based solely

on the individuals' genders must substantially further

a legitimate legislative purpose; the government's

objective must be important, and the classification

substantially related to achievement of it.

7. The requirement of K.S.A. 38-1114(f that any opt-

out agreement between an unmarried mother and a

known sperm donor intended to avoid the statutory

bar against the paternity of the donor must be in

writing does not result in an equal protection or due

process violation.

8. When called upon to interpret a statute, an appel-

late court first attempts to give effect to the intent of

the legislature as expressed through the language

enacted. When a statute is plain and unambiguous,

the court does not speculate as to the legislative intent

behind it and will not read the statute to add some-

thing not readily found in it. The court need not resort

to statutory construction. It is only if the statute's

language or text is unclear or ambiguous that the

court moves to the next analytical step, applying

canons of construction or relying on legislative history

to effect the legislature's intent.

App. 5

9. K.S.A. 38-1114(f) does not require a sperm donor to

provide his sperm directly to a physician performing

an artificial insemination.

10. Under the facts of this case, a child in need of care

petition and a paternity petition did not, either

individually or together, satisfy the K.S.A. 38-1114(f

requirement of a written agreement between the

parties.

11. A specific statute controls over a general statute.

Likewise, a specific provision within a statute controls

over a more general provision within the statute.

K.S.A. 38-1114(f) is more specific to cases involving

artificial insemination using donor sperm than the

general presumption of paternity set out in K.S.A. 38-

1114(a)(4).

12. Under the facts of this case, the sperm donor may

not pursue equitable arguments not pursued in the

district court or in his opening appellate brief. More-

over, the appellate record contains no evidence to

support his assertions of nefarious conduct by the

recipient.

Appeal from Shawnee district court; ROBERT J. _

SCHMISSEUR, assigned judge. Opinion filed October

26, 2007. Affirmed.

Kurt L. James, of Topeka, argued the cause and was

on the briefs for appellant.

App. 6

Susan Barker Andrews, of Topeka, argued the cause

and was on the briefs for appellee.

Linda Henry Elrod, Distinguished Professor of Law

and Director, of Topeka, was on the brief for amicus

curiae Washburn University School of Law Children

and Family Law Center.

Timothy M. O'Brien; of Shook Hardy & Bacon. L.L.P.,

of Overland Park, was on the brief for amicus curiae

Family Law Professors.

The opinion of the court was delivered by

BEIER, J.: This appeal from a consolidated child in

need of care (CINC) case and a paternity action arises

out of an artificial insemination leading to the birth of

twins K.M.H. and K.C.H. We are called upon to decide

the existence and extent of the parental rights of the

known sperm donor, who alleges he had an agreement

with the children's mother to act as the twins' father.

The twins' mother filed a CINC petition to establish

that the donor had no parental rights under Kansas

law. The donor sued for determination of his pater-

nity. The district court sustained the mother's motion

to dismiss, ruling that K.S.A. 38-1114(f) was control-

ling and constitutional. That statute provides:

“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." K.S.A. 38-1114(f).

App. 7

Factual and Procedural Background

Many of the underlying facts are undisputed. The

mother, S.H., is an unmarried female lawyer who

wanted to become a parent through artificial insemi-

nation from a known donor. She was a friend of the

donor, D.H., an unmarried male nonlawyer, who

agreed to provide sperm for the insemination. Both

S.H. and D.H. are Kansas residents, and their oral

arrangements for the donation occurred in Kansas,

but S.H. underwent two inseminations with D.H.'s

sperm in Missouri.

D.H. accompanied S.H. to a Missouri clinic for the

first procedure and provided the necessary sperm to

medical personnel. The first procedure did not result

in a pregnancy. D.H. did not accompany S.H. to

Missouri for the second procedure. Instead, he pro-

vided the sperm to S.H., and she delivered it to the

Missouri physician responsible for the insemination.

The second procedure resulted in S.H.'s pregnancy and

the birth of the twins.

There was no formal written contract between S.H.

and D.H. concerning the donation of sperm, the

artificial insemination, or the expectations of the

parties with regard to D.H.'s parental rights or lack

thereof.

The twins were born on May 18, 2005. The day after

their birth, S.H. filed a CINC petition concerning the

twins, seeking a determination that D.H. would have

no parental rights. The petition identified D.H. as

"(t]he minor children's father" and alleged that the

twins were in need of care "as it relates to the father"

and that “the [flather should be found unfit and his

App. 8

rights terminated." The petition continued to refer to

D.H. throughout as the twins' father.

On May 31, 2005, D.H. filed an answer to the CINC

petition and filed a separate paternity action acknowl-

edging his financial responsibility for the children and

claiming parental rights, including joint custody and

visitation. The CINC and paternity actions were

consolidated. S.H. filed a motion to dismiss the pater-

nity action, invoking K.S.A. 38-1114(f). After the

motion was filed, the district judge raised questions

concerning choice of law and the constitutionality of

the statute and ordered the parties to brief these

issues along with the other sues arising out of the

motion to dismiss.

In her brief, S.-H. argued Kansas law should apply

because her original oral agreement with D.H. took

place in Kansas; the parties reside in Kansas; the

sperm resulting in the pregnancy was given to her by

D.H. in Kansas; and the children reside in Kansas. In

her view, the single fact that the procedure was

performed by a doctor in Missouri did not constitute a

significant contact with that state, and Missouri did

not have a sufficient ongoing interest in the parties or

in the subject matter of their dispute.

On the merits, S.H. principally relied upon K.S.A.

38-1114(f). S.H. argued that her CINC petition did not

constitute her written assent to D.H.'s parental rights

under K.S.A. 38-1114(f). She also asserted that the

mutual preinsemination intent of the parties—as a

single mother-to-be and a sperm donor only, not as co-

parents—was clear from their actions during the

pregnancy. According to S.H., she sought out fertility

App. 9

tests and trestiments on her own; D.H. did not attend

the second procedure or sonograms or other prenatal

medical appointments; and he did not provide emo-

tional support or financial assistance during the

pregnancy or after the twins' birth. She also argued

that D.H. was morally, financially, and emotionally

unfit to be a father.

In his arguments in the district court, D.H. main-

tained that he had standing to file his paternity action

as the biological father of K.M.H. and K.C.H. On

choice of law, D.H. argued that Kansas conflict princi-

ples required the court to look to the place of either ©

contract formation or contract performance. He

asserted that the "more sensible" approach in this case

would be to apply the law of the state where perfor-

mance occurred, which was, according to him, where

the artificial insemination was performed. D.H. said

Missouri has no statute barring a presumption of

paternity for a known sperm donor for an unmarried

woman; paternity is proved by "consanguinity or

genetic test." D.H. also asserted that no doctor would

perform an insemination on an unmarried woman in

Topeka, Lawrence, or Kansas City, Kansas, and

suggested a Kansas doctor could have had a duty to

discuss the legal implications of the procedure under

Kansas law while a Missouri doctor would not.

In the event the court held that Kansas law gov

erned, D.H. argued that K.S.A. 38-1114(f unconstitu-

tionally deprived him of his right to care, custody, and

control of his children and violated public policy

"support[ing] the concept of legitimacy and the con-

comitant rights of a child to support and inheritance."

If the statute is constitutional, he asserted;ats dictate

App. 10

of nonpaternity of a sperm donor should not apply to

him because he had provided his sperm to S.H. rather

than to a licensed physician. He also cited the CINC

petition's identification of him as the twins' "father"

and its faulting of him for failing to do things consis-

tent with parenthood. D.H. asserted the wording of

the CINC petition was evidence of the parties' mutual

intent to take themselves out from under the statutory

provision for nonpaternity. He also contended that he

had offered financial assistance and attempted to visit

the children in the hospital after their birth and on

subsequent occasions, but that he was prevented from

doing so by S.H.

The district judge ruled that Kansas law governed,

that K.S.A. 38-1114(f) was constitutional and applica-

ble, and that the CINC petition did not constitute a

written agreement departing from the provision for

nonpaternity set forth in the statute. The judge

therefore granted S.H.'s motion, concluding as a

matter of law that D.H. had no legal rights or respon-

sibilities regarding K.M.H. and K.C.H.

Issues on Appeal

On appeal, both parties reiterate the arguments

they made to the district court, and D.H. alleges for

the first time that another statutory provision and

equity favor his side of the case. We therefore address

six issues: (1) Did the district judge err in ruling that

Kansas law would govern? (2) Did the district judge

err in holding K.S.A. 38-1114(f) constitutional under

the Equal Protection and Due Process Clauses of the

Kansas and the federal Constitutions? (3) Did the

App. 11

district judge err in interpreting and applying the

"provided to a licensed physician" language of K.S.A.

38-1114(f)? (4) Did the district judge err in determin-

ing that the CINC petition did not satisfy the require-

ment of a writing in K.S.A. 38-1114(f)? (5) Did K.S.A.

38-1114(a)(4) grant D.H. parental rights? and (6) Does

equity demand reversal of the district court?

On this appeal, we also have the benefit of briefs

from two amici curiae—one from the Washburn Uni-

versity School of Law's Children and Family Law

Center (Center), which argues that K.S.A. 38-1114(f

is unconstitutional as applied to known sperm donors,

and one from family law professors Joan Heifetz

Hollinger, et al., who argue that K.S.A. 38-1114(f) is

constitutional and that it should be applied consis-

tently with its plain language to bar D.H.'s assertion

of paternity.

Standing and Standard of Review

The parties do not appear to dispute D.H.'s standing

to bring a paternity action at this stage in the pro-

ceedings, but we note briefly as a preliminary matter

that his standing is not in serious doubt. K.S.A. 38-

1115(a)(1) permits a child "or any person on behalf of

such a child" to bring a paternity action "to determine

the existence of a father and child relationship pre-

sumed under K.S.A. 38-1114." It is D.H.'s position

that his fatherhood of the twins should be presumed

under the statute.

Regarding standard of review, each of the issues

raised on appeal presents a pure question of law

reviewable de novo by this court. Kluin v. American

App. 12

Suzuki Motor Corp., 274 Kan. 888, 893, 56 P.3d 829

(2002). Although S.H.'s motion was titled "Motion to

Dismiss," the district judge considered materials

beyond the pleadings, essentially treating the motion

as one for summary judgment. We are therefore

mindful of our often:stated standard of review follow-

ing summary judgment in the district court: We must

view the evidence in the light most favorable to the

nonmoving party, D.H. See Wachter Management Co.

v. Dexter & Chaney, Inc., 282 Kan. 365, 368, 144 P.3d

747 (2006). The district court's judgment for the

moving party, S.H., should be affirmed on appeal if

there remains no genuine issue of material fact for

trial and the case is appropriate for disposition in her

favor as a matter of law. See K.S.A. 60-256; Scott v.

Hughes, 281 Kan. 642, 644, 132 P.3d 889 (2006);

Kluin, 274 Kan. at 893.

Choice of Law

The United States Supreme Court has held:

"In deciding constitutional choice-of-law questions,

whether under the Due Process Clause or the Full

Faith and Credit Clause, this Court has traditionally

examined the contacts of the State, whose law was

applied, with the parties and with the occurrence or

transaction giving rise to the litigation. [Citation

omitted.] In order to ensure that the choice of law is

neither arbitrary nor fundamentally unfair [citation

omitted], the Court has invalidated the choice of law

of a State which has had no significant contact or

significant aggregation of contacts, creating state

interests, with the parties and the occurrence or

App. 13

transaction." Allstate Ins. Co. v. Hague, 449 U.S. 302,

308, 66 L. Ed. 2d 521, 101 S. Ct. 633 (1981).

Various factors are relevant to a choice-of-law

determination, including the procedural or substan-

tive nature of the question involved, the residence of

the parties involved, and the interest of the Svate in

having its law applied. Sun Oil Co. v. Wortman, 486

U.S. 717, 736, 100 L. Ed. 2d 743, 108 S. Ct. 2117

(1988) (Brennan, J., concurring). "As long as Kansas

has significant contact or [a] significant aggregation

of contacts'. .. to ensure that the choice of Kansas law

is not arbitrary or unfair," constitutional limits are

not violated.' [Citations omitted.]" Brenner uv.

Oppenheimer & Co., 273 Kan. 525, 534, 44 P.3d 364

(2002); see Phillips Petroleum Co. v. Shutts, 472 U.S.

797, 818, 86 L. Ed. 2d 628, 105 S. Ct. 2965 (1985)

(citing Allstate Ins. Co. v. Hague, 449 U.S. at 312-13);

Dragon v. Vanguard Industries, Inc., 277 Kan. 776,

790, 89 P.3d 908 (2004). Also, to the extent this case

is viewed as a contractual dispute, Kansas courts

apply the Restatement (First) of Conflict of Laws §

332 (1934), and the doctrine of lex loci contractus, i.e.,

the law of the state where the contract is made

governs. See ARY Jewelers vu. Krigel, 277 Kan. 464,

481, 85 P.3d 1151 (2004); Wilkinson v. Shoney's, Inc.,

269 Kan. 194, 209-10, 4 P.3d 1149 (2000); Foundation

Property Investments v. CTP, 37 Kan. App. 2d 890,

Syl. J 4, 159 P.3d 1042 (2007); Layne Christiansen Co.

v. Zurich Canada, 30 Kan. App. 2d 128, 141-42, 38

P.3d 757 (2002). A contract is made where the last act

necessary for its formation occurs. ARY Jewelers, 277

Kan. at 481-82: Wilkinson, 269 Kan. at 210; Founda-

App. 14

tion Property Investments, 37 Kan. App. 2d at 894-95;

Layne Christiansen Co., 30 Kan. App. 2d at 141-43.

"Generally the party seeking to apply the law of a

jurisdiction other than the forum has the burden to

present sufficient facts to show that other law should

apply. Failure to present facts sufficient to determine

where the contract is made may justify a default to

forum law." Layne Christensen Co., 30 Kan. App. 2d at

143-44. In addition, we note that Kansas courts have

often leaned toward a lex fori, or law of the forum,

approach, opting to apply Kansas law absent a clear

showing that another state's law should apply. See

Dragon, 277 Kan. at 790; Systems Design v. Kansas

City P.O. Employees Cred. Union, 14 Kan. App. 2d

266, 269, 788 P.2d 878 (1990). Moreover, our Court of

Appeals has recognized in a case focused on the

legitimacy of a child that, "{iJn our current mobile

society, piace of conception of child carries little

weight [in choice of law determination]." In re Adop-

tion of Baby Boy S., 22 Kan. App. 2d 119, 126, 912

P.2d 761, rev. dented 260 Kan. 993, cert. denied 519

U.S. 870 (1996). Instead,"{w]hether a child is legiti-

mate is determined by the local law of the state which,

with respect to the particular issue, has the most

significant relationship to the child and the parent";

considerations include "the relative interests of those

states in the determination of the particular issue,"

"the protection of justified expectations," "the basic

policies underlying the particular field of law," and

the "certainty, predictability and uniformity of result."

Restatement (Second) of Conflict of Laws § 6, § 287 (1)

& comment d (1969).

App. 15

D.H. urges us to follow the lead of the Illinois

Supreme Court in Jn Re Marriage of Adams, 133 III.

2d 437, 447, 551 N.E.2d 635 (1990), which applied the

law of the state where an insemination was performed

because it would "fulfill the participants’ expectations

and... help insure predictability and uniformity of

result."

In Adams, a husband and wife had been Florida

residents; their consultations concerning fertility

options occurred in Florida; the artificial insemination

from an anonymous donor was performed by a Florida

doctor in his Florida clinic; and the baby was born in

Florida and was a Florida resident until the wife

moved herself and the child to her parents' home in

Illinois and then filed for divorce. The husband sought

a determination of nonpaternity, and the court deter-

mined that Florida law should govern because Florida

had a more significant relationship than Illinois to the

parentage dispute. 133 Il. 2d at 447.

The facts of this case bear little resemblance to the

facts of Adams. Here, the parties are Kansas resi-

dents. Whatever agreement that existed between the

parties was arrived at in Kansas, where they ex-

changed promises supported by consideration, and

D.H. literally delivered on his promise by giving his

sperm to S.H. The twins were born in Kansas and

reside in Kansas. The only fact tying any of the

participants to Missouri is the location of the clinic

where the insemination was performed.

Under these circumstances, we hold that Kansas law

applies and that significant contacts and a significant

aggregation of contacts with Kansas make application

App. 16

of our law to the parties' claims not only appropriate

but also constitutional. This choice is neither arbi-

trary nor unfair; neither party would have been

justified in expecting Missouri to have a controlling

interest as to any dispute between them.

Constitutionality of K.S.A. 38-1114(f)

In his brief, D.H. makes a general allegation that

K.S.A. 38-1114(f) offends the Constitution. The cases

he cites in support discuss both the Equal Protection

Clause and the Due Process Clause; we thus presume

his challenge relies upon each of these provisions. See

U.S. Const. amend. XIV; Kan. Const. Bill of Rights, §§

2, 18. At oral argument before this court, D.H. con-

ceded that his rights under these provisions do not

differ as between the federal and state Constitutions.

He also acknowledged that he no longer challenges the

statute as unconstitutional on its face; rather, he

argues it cannot be constitutionally applied to him, as

a known sperm donor who alleges he had an oral

agreement with the twins’ mother that granted him

parental rights. The amicus brief filed by the Center

further clarifies that the constitutional challenge

before us is only to the statute as applied to D.H.

The Center insists the statute deprives D.H. of

parental rights without due process of law and with-

out a required finding of unfitness. It urges us to

dispense with a literal reading of the statute's lan-

guage, invoking the purported purpose of the Kansas

Parentage Act, K.S.A. 31-1110 et seqg., to encourage

fathers to acknowledge paternity and child support

obligations voluntarily. It also emphasizes that courts

App. 17

should seek a result geared to the best interests of the

child, in this case advancing a public policy favoring

the right of every child to two parents, regardless of

the means of the child's conception.

As mentioned in summary above, our review of

whether a statute is constitutional raises a question

of law reviewable de novo. In re Tax Appeal of CIG

Field Services Co., 279 Kan. 857, 866-67, 112 P.3d 138

(2005). In addition,

"(t]he constitutionality of a statute is presumed. All

doubts must be resolved in favor of its validity, and

before the act may be stricken down it must clearly

appear that the statute violates the constitution. In

determining constitutionality, it is the court's duty to

uphold a statute under attack rather than defeat it. If

there is any reasonable way to construe the statute as

constitutionally valid, that should be done. A statute

should not be stricken down unless the infringement

of the superior law is clear beyond substantial doubt. '

[Citations omitted]." State v. Rupnick, 280 Kan. 720,

736, 125 P.3d 541 (2005).

Given the relative newness of the medical procedure

of artificial insemination, and thus the newness of

K.S.A. 38-1114(f)'s attempt to regulate the relation-

ships arising from it, it is not surprising that the issue

raised by D.H. is one of first impression, not only in

Kansas but nationally. We therefore begin our discus-

sion of the constitutionality of the statute by survey-

ing the landscape of various states' laws governing the

rights of sperm donors for artificial insemination. This

landscape and its ongoing evolution provide helpful

context for our analysis of K.S.A. 38-1114(f).

App. 18

The majority of states that have enacted statutes

concerning artificial insemination state that the

husband of a married woman bears all rights and

obligations of paternity as to any child conceived by

artificial insemination, whether the sperm used was

his own or a donor's. See, e.g., Ala. Code § 26-17-21(a)

(1992) ("If, under the supervision of a licensed physi-

cian and with the consent of her husband, a wife is

inseminated artificially with semen donated by a man

not her husband, the husband is treated in law as if

he were the natural father of a child thereby con-

ceived."); see also Cal. Fam. Code § 7613(a) (West

2004) (same); Colo. Rev. Stat. § 19-4-106(1) (West

2005) (same); Ill. Comp. Stat. ch. 750 40/3(a) (West

1999) (same); Minn. State § 257.56 Subd. 1 (2007);

Mo. Rev. Stat. 210.824(1) (2000) (same); Mont. Code

Ann. § 40-6-106(1) (2005); Nev. Rev. Stat. § 126.061(1)

(2005) (same); N.J. Stat. Ann. § 9:17-44(a) (2002)

(same); N.M. Stat. Ann. § 40-11-6(A) (Michie 2006)

(same); Ohio Rev. Code Ann. § 3111.95(A) (Anderson

2003) (similar); Wis. Stat. § 891.40(1) (2005-06)

(same). Further, several of these states' statutes |

provide that a donor of semen used to inseminate a

married woman will not be treated in law as the

father of any child conceived, if he is not the woman's

husband. See, e.g., Ala. Code § 26-17-21(b) (1992)

("The 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."); Minn. Stat. § 257.56 Subd. 2 (2007)

(same); Mo. Rev. Stat. § 210.824(2) (2000) (same);

Mont. Code Ann. § 40-6-106(2) (2005) (same); Nev.

Rev. Stat. § 126.061 (2) (2005) (same). One court has

App. 19

observed that these two rules protect the expectations

of the married couple, the best interests of the child,

and the expectations of the donor. See People uv.

Sorensen, 68 Cal. 2d 280, 284-88, 66 Cal. Rptr. 7, 437

P.2d 495 (1968).

The 1973 Uniform Parentage Act, promulgated by

the National Conference of Commissioners on Uniform

State Laws, 9B U.L.A. 377 (2001), provided the model

for many of the state artificial insemination statutes

that incorporate these two rules. See, e.g., Cal. Fam.

Code § 7613; N.M. Stat. Ann. § 40-11-6. Section 5 of

the original uniform Act provided:

"(a) If, under the supervision of a licensed physician

and with the consent of her husband, a wife is insemi-

nated artificially with semen donated by a man not

her husband, the husband is treated in law as if he

were the natural father of a child thereby conceived.

The husband's consent must be in writing and signed

by him and his wife. The physician shall certify their

signatures and the date of the insemination, and file

the husband's consent with the [State Department of

Health], where it shall be kept confidential and in a

sealed file. However, the physician's failure to do so

does not affect the father and child relationship. All

papers and records pertaining to the insemination,

whether part of the permanent record of a court or of

a file held by the supervising physician or elsewhere,

are subject to inspection only upon an order of the

court for good cause shown.

"(b) The donor of semen provided to a licensed

physician for use in artificial insemination of a mar-

ried woman other than the donor's wife is treated in

App. 20

law as if he were not the natural father of a child

thereby conceived." (Emphasis added.) Uniform

Parentage Act (1973) § 5; 9B U.L.A. at 407-08. -

The wording of this original Act and statutes that

imitated it did not address the determination of a

sperm donor's paternity when an unmarried woman

conceived a child through artificial insemination. The

earliest case to address this particular question arose

in a state that had not yet adopted any statute regard-

ing the effects of the procedure.

In that case, C.M. v. C.C., 152 N.J. Super. 160, 377

A.2d 821 (1977), a sperm donor filed a paternity suit,

seeking parental rights to a child born when the

child's unmarried mother artificially inseminated

herself with the donor's sperm. In that case, the

mother and the donor had been in a long-standing

romantic relationship; the donor testified they were

contemplating marriage; the mother wanted a child

but did not want to have sexual intercourse before

marriage; and the insemination procedure was per-

formed at the mother's home. Three months into the

pregnancy, the mother ended her relationship with

the donor, and she refused him access to the child

after its birth.

The New Jersey court relied upon a common-law

presumption of paternity to award visitation rights to

the donor as the "natural father" of the "illegitimate

child." Had the mother and the donor been married

and conceived the child through artificial insemina-

tion, the court said, the donor would have been consid-

ered the child's father. Given the evidence that the

parties had intended to parent the child together, the

App. 21

court believed the same result should follow, despite

the absence of wedding vows. 152 N.J. Super. at 165-

68.

Certain states other than New Jersey either antici-

pated the need for their original statutes to govern the

relationship of a sperm donor to the child of an un-

married recipient as well as a married recipient or

modified their original uniform Act-patterned statutes

to remove the word "married" from the § 5 (b) lan-

guage. This meant these states’ statutes contained

complete bars to paternity for any sperm donor not

married to the recipient, regardless of whether the

recipient was married to someone else and regardless

of whether the donor was known or anonymous. An

example of such a provision reads: "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

natural father of a child thereby conceived." See, e.g.,

Cal. Fam. Code § 7613(b) (West 2004); Ill. Comp. Stat.

ch. 750 40/3(b) (West 1999); Wis. Stat. § 891.40(2)

(2005-06) (same); see also Colo. Rev. Stat. § 19-4-

106(2) (West 2005) (substantially similar); Conn. Gen.

Stat. § 45a-775 (2007) (similar); Idaho Code § 39-5405

(2002) (similar); Ohio Rev. Code Ann. § 3111.95(B)

(Anderson 2008) (same); Va. Code Ann. § 20-158(A) (8)

(2004) (substantially similar).

Four cases interpreting one of these types of statutes

covering both married and unmarried recipients and

establishing an absolute bar to donor paternity were

‘decided before a 2000 amendment to the uniform Act

made it applicable to unmarried as well as married

recipients of donor sperm. See Uniform Parentage Act

(2000); 9B U.L.A. 295 (West 2001).

App. 22

The first of the four arose in California in 1986. In

that case, Jhordan C. v. Mary K., 179 Cal. App. 3d

386, 224 Cal. Rptr. 530 (1986), a donor provided

sperm to one of two unmarried women who had

decided to raise a child together. California had

adopted the language of the 1973 Uniform Act with

the exception that it had omitted the word "married"

in the second subsection. Jhordan C., 179 Cal. App. 3d

at 392 (citing then-existing Cal. Civ. Code § 7005

[West 1979], which now appears, substantially un-

changed, in Cal. Fam. Code § 7613 [West 2004]). As

the court put it:

"(T]he California Legislature has afforded unmar-

ried as well as married women a statutory vehicle for

obtaining semen for artificial insemination without

fear that the donor may claim paternity, and has

likewise provided men with a statutory vehicle for

donating semen to married and unmarried women

alike without fear of liability for child support. Subdi-

vision (b) states only one limitation on its application:

the semen must be ‘provided to a licensed physician. '

Otherwise, whether impregnation occurs through

artificial insemination or sexual intercourse, there can

be a determination of paternity with the rights, duties

and obligations such a determination entails."

Jhordan C., 179 Cal. App. 3d at 392.

Because the parties had no doctor involved in the

donation or insemination and thus the sperm was

never "provided to a licensed physician,” the court

ruled that the case before it fell outside the statute. It

therefore affirmed the lower court's recognition of the

donor's paternity. Jhordan C., 179 Cal. App. 3d at

398. Although the court addressed its ruling's impact

App. 23

on the constitutional rights of the two women, it did

not address any constitutional implications for the

donor. Jhordan C., 179 Cal. App. 3d at 395-96.

The second case, Jn Interest of R.C., 775 P.2d 27

(Colo. 1989), arose in Colorado in 1989. In that case,

the district court had refused to admit proffered

evidence of an agreement that the donor would act as

a father based on relevance; it granted the unmarried

mother's motion to dismiss the donor's paternity suit

based on Colorado's statute. The Colorado provision,

like that in California, applied to both married and

unmarried recipients and contained a blanket bar to

donor parental rights. See Colo. Rev. Stat. § 19-4-106).

The Colorado Supreme Court reversed the district

court and remanded for findings of fact. It explicitly

rejected the idea that an unmarried recipient lost the

protection of the statute "merely because she knows

the donor." #.C., 775 P.2d at 35. And it did not reach

the equal protection and due process challenges raised

by the donor. However, it concluded the statute was

ambiguous and refused to apply its absolute bar to

paternity because the known donor had produced

evidence of an oral agreement that he would be

treated as father of the child. R.C., 775 P.2d at 35.

The next case, McIntyre v. Crouch, 98 Or. App. 462,

780 P.2d 239 (1989), cert. denied 495 U.S. 905 (1990),

involved an unmarried woman who artificially insemi-

nated herself with a known donor's semen. The donor

sought recognition of his paternity, and both he and

the woman sought summary judgment. The Oregon

artificial insemination statute read:

"If the donor of semen used in artificial insemination

is not the mother's husband: (1) Such donor shall have

App. 24

no right, obligation or interest with respect to a child

born as a result of the artificial insemination; and (2)

A child born as a result of the artificial insemination

shall have no right, obligation or interest with respect

to the donor." Ore. Rev. Stat. § 109.239 (1977).

The donor challenged this statute under equal

protection and due process principles. He swore out an

affidavit in support of summary judgment and argued

he had relied on an agreement with the mother that

he "would remain active" in the child's life and "partic-

ipate in all important decisions concerning the child."

98 Or. App. at 464. He sought visitation and said that

he was willing and able to accept the same level of

responsibility for the support, education, maintenance,

and care of the child and for pregnancy-related ex-

penses that he would have had if the child had been

born from his marriage to its mother. The district

court ruled that the donor's paternity claim was

barred by the Oregon statute.

The McIntyre court began its analysis by reciting its

equal protection standard of review, which was strict

scrutiny, a standard more searching than that applied

to such claims in Kansas. See generally State v.

Limon, 280 Kan. 275, 283-87, 122 P.3d 22 (2005)

(equal protection challenge based on gender discrimi-

nation does not require strict scrutiny, i.e., showing

classification necessary to serve compelling state

interest; rather, court applies intermediate scrutiny,

i.e., Classification must substantially further legiti-

mate legislative purpose); see Chiles v. State, 254 Kan.

888, 891-93, 869 P.2d 707, cert. denied 513 U.S. 850

(1994); Farley v. Engelken, 241 Kan. 663, 669, 740

P.2d 1058 (1987). The Oregon court stated: "A statute

App. 25

that gives a privilege to women while denying it to

men is inherently suspect ana subject to strict scru-

tiny, unless the classification (1) is based on specific

biological differences between men and women and (2)

is rationally related to the purposes of the statute."

McIntyre, 98 Or. App. at 469.

Under this standard, the Oregon court ruled that

the statute before it drew an acceptable "classification

of unmarried males and unmarried females... based

on biological differences .... Only a male could

contribute the sperm to accomplish conception; only a

female could conceive and bear the child." 98 Or. App.

at 469-470. Further, the classification was rationally

related to the purposes of the statute, which were: (1)

to allow married couples to have children, even though

the husband was infertile, impotent, or ill; (2) to allow

an unmarried woman to conceive and bear a child

without sexual intercourse; (3) to resolve potential

disputes about parental rights and responsibilities:

that is, (a) the mother's husband, if he consents, is

father of the child, and (b) an unmarried mother is

free from any claims by the donor of parental rights;

(4) to encourage men to donate semen by protecting

them against any claims by the mother or the child;

and (5) to legitimate the child and give it rights

against the mother's husband, if he consented to the

insemination. 98 Or. App. at 467-68, 470. Thus the

statute did not offend equal protection either on its

face or as applied.

The court also rebuffed the donor's due process

challenge to the statute on its face. 98 Or. App. at 470.

However, the donor also argued that the statute

violated due process under the federal and state

App. 26

Constitutions as applied to him, a known donor who

had an agreement with the mother to share the rights

and responsibilities of parenthood. The court agreed

the statute would violate the Due Process Clause of

the Fourteenth Amendment as applied to the donor if

such an agreement was proved. 98 Or. App. at 470-72.

On this point, the court looked to Lehr v. Robertson,

463 U.S. 248, 261, 77 L. Ed. 2d 614, 103 S. Ct. 2985

(1983), an adoption case. Lehr dealt with the necessity

of notice of pending adoption proceedings to an unwed

father who had not filed with New York's putative

father registry and had never established a substan-

tial relationship with the child. The Court stated:

"When an unwed father demonstrates a full commit-

ment to the responsibilities of parenthood by 'com{ing]

forward to participate in the rearing of his child,’

[citation omitted], his interest in personal contact with

his child acquires substantial protection under the

Due Process Clause. ... But the mere existence of a

biological link does not merit equivalent constitutional

protection." Lehr, 463 U.S. at 261 (quoted in Melntyre,

98 Or. App. at 470).

The Lehr Court ultimately held that the State's

failure to notify the father of adoption proceedings did

not deny him due process of law. 463 U.S. at 264-65.

No substantive due process right to care, custody, and

control of the child had vested in a man who could

demonstrate nothing more than a biological link to his

offspring. 463 U.S. at 258-62. The Lehr Court noted,

however, that an unwed father who demonstrated "a

full commitment to the responsibilities of parenthood"

could not be absolutely barred from asserting his

App. 27

parental rights without a violation of due process. 463

U.S. at 261.

The McIntyre court reasoned that the Due Process

Clause should afford no less protection to a sperm

donor who had facilitated artificial insemination than

an unwed father, "provided that [the sperm donor]

could prove the facts" in his summary judgment

affidavit that tended to support the existence of an

agreement with the mother and his reliance upon it.

Because the court concluded the constitutionality of

the Oregon statute as applied to this donor would turn

on whether he was given an opportunity to establish

those facts, summary judgment in favor of the mother

was reversed. 98 Or. App. at 472.

The last of the four cases, C.O. v. W.S., 64 Ohio

Misc. 2d 9, 639 N.E.2d 523 (1994), also concluded, as

the McIntyre court did, that a statute purporting to be

an absolute bar to paternity of sperm donors, while

constitutional in the absence of an agreement to the

contrary, could be unconstitutional as applied when

the donor can establish that an agreement to share

parenting existed between him and the unmarried

woman who was the recipient of the sperm. 64 Ohio

Misc. 2d at 12.

In C.O., the Ohio statute at issue stated: "If a

woman is the subject of a non-spousal artificial

insemination, a donor shall not be treated in law or

regarded as the natural father of a child conceived as

a result of the artificial insemination, and a child so

conceived shall not be treated in law or regarded as

the natural child of the donor." See Ohio Rev. Code

Ann. § 3111.95 (Anderson 2003). The statute also

App. 28

required artificial insemination to be conducted under

the supervision of a physician. 64 Ohio Misc. 2d at 10-

11. As in Jhordan C., an unmarried woman had

inseminated herself with a known donor's sperm.

Although the court ultimately determined the statute

was inapplicable because the mother had failed to

comply with the physician involvement requirement,

it further opined that the statute would violate due

process if applied to the donor, because he and the

mother, at the time of the procedure, had agreed there

would be a relationship between the donor and the

child. 64 Ohio Misc. 2d at 12.

Since the Uniform Act was amended in 2000 to state

simply, "A donor is not a parent of a child conceived by

means of assisted reproduction," two of our sister

states have decided three additional cases addressing

statutes with identical or substantively indistinguish-

able provisions governing sperm donors and unmar-

ried recipients. Steven S. v. Deborah D., 127 Cal. App.

4th 319, 25 Cal. Rptr. 3d 482 (2005); In re H.C.S., 219

S.W.3d 33 (Tex. App. 2006); In re Sullivan, 157

S.W.3d 911 (Tex. App. 2005).

Two of these cases come from Texas. They do not

add much to the legal landscape with which we are

concerned in this appeal because their outcomes were

driven by standing, not an issue before us. See H.C.S.,

219 S.W.3d 33 (known donor lacked standing to

pursue parentage adjudication; child conceived

through assisted reproduction by unmarried donor's

sister's same-sex partner using donor's sperm);

Sullivan, 157 S.W.3d 911 (known donor had standing

to maintain paternity action; parties had signed

App. 29

preinsemination agreement stating donor would be

treated as if he, mother were married).

The third case, Steven S., 127 Cal. App. 4th 319,

from California, involved an unmarried woman and a

known sperm donor who tried artificial insemination;

when that resulted in a miscarriage, they attempted

to conceive through sexual intercourse, also without

success. Finally, a second artificial insemination

attempt resulted in conception. The donor initially

was very involved with the pregnancy and the child,

and he filed a paternity action when the child was 3

years old.

The district court noted that California's statute

presented a bar to paternity for unmarried sperm

donors, but ruled in favor of the donor based on

equitable estoppel. The donor was known; he had

engaged in sexual intercourse with the unwed mother;

and she had acknowledged him as the child's father

and had allowed him to participate in the pregnancy

and celebrate the birth of the child. The California

Court of Appeals reversed, holding that the "words of

[Cal. Fam. Code] section 7613, subdivision (b) are

clear" and that, under such facts, "[t]here can be no

paternity c'1im" because of the statute's absolute bar.

Steven S., 127 Cal. App. 4th at 326.

None of these three decisions raised or reached the

equal protection or due process challenges raised by

the donor here.

Where does our Kansas statute fit into this land-

scape and its ongoing evolution?

In 1985, Kansas became one of the states that

adopted portions of the Uniform Parentage Act of 1973

App. 30

regarding presumptions of paternity, but it did not

adopt any provision relating to artificial insemination.

See L. 1985, ch. 114, sec. 5 (H.B. 2012).

In 1994, Kansas amended its statute to incorporate

the 1973 Uniform Act's § 5(b) as K.S.A. 38-1114(f). See

L. 1994, ch. 292, sec. 5 (Subst. H.B. 2583). It did not

differentiate between known and unknown or anony-

mous donors, but it did make two notable changes in

the uniform language.

As discussed above, although the 1973 Uniform Act

governed the, paternity of children born only to mar-

ried women as a result of artificial insemination with

donor sperm, the version adopted by Kansas omitted

the word "married." See K.S.A. 38-1114(f). This

drafting decision demonstrates the legislature's intent

that the bar to donor paternity apply regardless of

whether the recipient was married or unmarried.

The other alteration in the 1973 Uniform Act's

language is directly at issue here. The Kansas Legisla-

ture provided that a sperm donor and recipient could

choose to opt out of the donor paternity bar by written

agreement. See K.S.A. 38-1114(f). The legislative

record contains no explanation for this deviation from

the 1973 Uniform Act's language. See Minutes of the

House Judiciary Committee, January 19, 1994, and

February 25, 1994.

This second drafting decision is critical and sets this

case apart from all precedent. Our statute's allowance

for a written agreement to grant a sperm donor

parental rights and responsibilities means that,

although we may concur with the McIntyre and C.O.

courts in their constitutional analyses of absolute-bar

App. 31

statutes, we need not arrive at the same result. K.S.A.

38-1114( includes exactly the sort of escape clause

the Oregon and Ohio courts found lacking—and

unconstitutional—in their statutes.

Ultimately, in view of the requirement that we

accept as true D.H.'s evidence supporting existence of

an oral agreement, we are faced with a very precise

question: Does our statute's requirement that any opt-

out agreement between an unmarried mother and a

known sperm donor be "in writing" result in an equal

protection or due process violation? Although several

other states have adopted statutes like K.S.A. 38-

1114(f), including language permitting an unmarried

woman and a sperm donor to avoid the statutory bar

and provide for the paternity of the donor through an

“agreement in writing"~—see Ark. Code Ann. § 9-10-201

(2002); Fla. Stat. § 742.14 (2005); N.H. Rev. Stat. Ann.

§ 168-B:3(I)(e) (2002); N.J. Stat. Ann. § 9:17-44(b)

(2002); N.M. Stat Ann. § 40-11-6(B) (2006)—none of the

courts of these states has yet subjected such a statute

to a constitutional crucible. We do so now, as K.S.A.

38-1114(f) is applied to D.H.

Equ ti

K.S.A. 38-1114(f) draws a gender-based line between

a necessarily female sperm recipient and a necessarily

male sperm donor for an artificial insemination. By

operation of the statute, the female is a potential

parent or actual parent under all circumstances; by

operation of the same statute, the male will never be

a potential parent or actual parent unless there is a

written agreement to that effect with the female. As

App. 32

discussed with counsel for the parties at oral argu-

ment before this court, 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 insemina-

tion and can unilaterally deny any wish of the male

for parental rights by refusing to enter into a written

agreement.

The guiding principle of equal protection analysis is

that similarly situated individuals should be treated

alike. Cleburne v. Cleburne Living Center, Inc., 473

U.S. 432, 439, 87 L. Ed. 2d 313, 105 S. Ct. 3249

(1985); State v. Limon, 280 Kan. 275, 283, 122 P.3d 22

(2005). In Kansas, as before the United States Su-

preme Court, statutory gender classifications such as

this classification in K.S.A. 38-1114(f) are subject to

intermediate, or heightened, scrutiny. Limon, 280

Kan. at 283-87; Chiles, 254 Kan. at 891-93; Farley,

241 Kan. at 669; see Reed v. Reed, 404 U.S. 71, 76-77,

30 L. Ed. 2d 225, 92 S. Ct. 251 (1971). In order to pass

muster under the federal and state equal protection

provisions, a classification that treats otherwise

similarly situated individuals differently based solely

on the individuals' genders must substantially further

a legitimate legislative purpose; the government's

objective must be important, and the classification

substantially related to achievement of it. Nevada

Dept. of Human Resources v. Hibbs, 538 U.S. 721, 729,

155 L. Ed. 2d 953, 123 S. Ct. 1972 (2003); United

App. 33

States v. Virginia, 518 U.S. 515, 533, 135 L. Ed. 2d

735, 116 S. Ct. 2264 (1996); Farley, 241 Kan. at 669.

Given the biological differences between females and

males and the immutable role those differences play

in conceiving and bearing a child, regardless of

whether conception is achieved through sexual inter-

course or artificial insemination, we are skeptical that

S.H. and D.H. are truly similarly situated. However,

assuming for purposes of argument that they are, we

perceive several legitimate legislative purposes or

important governmental objectives underlying K.S.A.

38-1114(f).

As the McIntyre Court observed about the Oregon

statute, K.S.A. 38-1114(f) envisions that both married

and unmarried women may become parents without

engaging in sexual intercourse, either because of

personal choice or because a husband or partner is

infertile, impotent, or ill. It encourages men who are

able and willing to donate sperm to such women by

protecting the men from later unwanted claims for

support from the mothers or the children. It protects

women recipients as well, preventing potential claims

of donors to parental rights and responsibilities, in the

absence of an agreement. Its requirement that any

such agreement be in writing enhances predictability,

clarity, and enforceability. Although the timing of

entry into a written agreement is not set out explic-

itly, the design of the statute implicitly encourages

early resolution of the elemental question of whether

a donor will have parental rights. Effectively, the

parties must decide whether they will enter into a

written agreement before any donation is made, while

App. 34

there is still balanced bargaining power on both sides

of the parenting equation.

In our view, the statute's gender classification

substantially furthers and is thus substantially

related to these legitimate legislative purposes and

important governmental objectives. K.S.A. 38-1114(f)

establishes the clear default positions of parties to

artificial insemination. If these parties desire an

arrangement different from the statutory norm, they

are free to provide for it, as long as they do so in

writing. Encouraging careful consideration of entry

into parenthood is admirable. Avoidance of the limbo

in which D.H. finds himself is a worthy legislative

goal. We therefore hold that the application of K.S.A.

38-1114(f) to D.H. does not violate equal protection.

Due Process

Neither D.H. nor the Center explicitly addresses

whether the due process chiilenge to K.S.A. 38-1114(H

in this case is based on procedural due process princi-

ples or substantive due process doctrine. Nor did the

Oregon or Ohio courts that decided McIntyre and C.O.

draw this distinction or comment upon it. See 98 Or.

App. at 471-72; 64 Ohio Misc. 2d at 12. To the extent

D.H.'s due process argument is couched in procedural

language, t.e., that K.S.A. 38-1114(f)'s requirement of

a writing, strictly interpreted, denies him "a meaning-

ful opportunity to be heard" on the claim that there

was, in fact, an oral agreement, we simply disagree.

Indeed, for purposes of ruling on the propriety of the

district judge's summary disposition in favor of S.H.,

we accept D.H.'s evidence that there was an oral

App. 35

agreement. Still, he has been denied no procedural

right to which he was entitled; the statute merely sets

up a burden of proof that his own inaction before

donating his sperm left him unable to meet.

D.H.'s ignorance of the statute's requirement of a

writing to record any agreement between him and

S.H. as to his parental rights does not necessitate a

ruling that the statute cannot be constitutionally

applied to him. See Jhordan C. v. Mary K., 179 Cal.

App. 3d 386, 389, 224 Cal. Rptr. 530 (1986) (court

analyzes applicability of artificial insemination

statute despite parties’ ignorance of it); see also Lehr

vu. Robertson, 463 U.S. 248, 264, 77 L. Ed. 2d 614, 103

S. Ct. 2985 (1983) (failure to file with putative father

registry out of ignorance of law insufficient reason to

criticize law itself); State ex rel. Murray v. Palmgren,

231 Kan. 524, 536, 646 P.2d 1091 (1982) (ignorance of

the law is no excuse). It is apparent to us that the only

potentially meritorious due process argument before

us focuses on the assertion of D.H.'s fundamental

right to care, custody, and control of his children. This

raises a substantive due process concern, rather than

a problem over the absence of a specific procedural

protection. Indeed, if anything, D.H. and the Center

advocate for less rather than more formality in pro-

cess; they regard the requirement of a writing to

memorialize any agreement between a sperm donor

and a recipient as so heavy a procedural burden that

it tips the constitutional scales in favor of D.H. here.

In addition to relying on McIntyre and C.O., which,

as previously discussed, addressed complete-bar

statutes unlike our own, D.H. and the Center empha-

size the United States Supreme Court's decision in

App. 36

Lehr. See 463 U.S. at 261. Lehr's facts limit its utility

here. As mentioned above, that case involved an

unwed biological father petitioning to set aside an

order of adoption based on his failure to be notified of

the adoption proceedings. A New York statute guaran-

teed protection of any interest such a putative father

could have in assuming a responsible role in the

future of his child: The father in Lehr had failed to

avail himself of this protection and had taken no other

action that would have established a protectable

interest in the child. While a state may not absolutely

bar a biological parent from asserting parental

rights—the proposition for which D.H. and the Center

cite Lehr—Kansas has not done so. Even a sperm donor

with no relationship to a child's mother can forge and

protect his parental rights by insisting on a written

agreement.

D.H. and the Center argue that D.H.'s other efforts

to assert his entitlement to and intention to exercise

parental rights—stymied, they say, by S.H.-should be

enough. S.H., of course, casts D.H.'s behavior in a

considerably less favorable light. Again, however, for

purposes of review of the district judge's summary

deposition in S.H.'s favor, we accept D.H.'s version of

events. The infirmity in his substantive due process

argument does not lie in those factual allegations for

which he has provided evidence in the record, includ-

ing his allegation of an oral agreement; the infirmity

lies in the absence of any proof of an agreement with

S.H. in writing.

We simply are not persuaded that the requirement

of a writing transforms what is an otherwise constitu-

tional statute into one that violates D.H.'s substantive

App. 37

due process rights. Although we agree with the Center

that one goal of the Kansas Parentage Act as a whole

is to encourage fathers to voluntarily acknowledge

paternity and child support obligations, the obvious

impact of the plain language of this particular provi-

sion in the Act is to prevent the creation of parental

status where it is not desired or expected. To a certain

extent, D.H. and the Center evidently misunderstand

the statute's mechanism. It ensures no attachment of

parental rights to sperm donors in the absence of a

written agreement to the contrary; it does not cut off

rights that have already arisen and attached.

We are confident this legislative design realizes the

expectation of unknown or anonymous sperm donors,

whether their motive for participation in artificial

insemination is altruistic or financial. To the extent it

does not realize the expectation of a known sperm

donor, the statute tells him exactly how to opt out,

how to become and remain a father. If, as the Center

argues, genetic relationship must be destiny, then an

anonymous donor with no intention to be a father

would nevertheless automatically become one. It is

evident to us the legislature chose an alternate

arrangement. Neither D.H. nor the Center has con-

vinced us there is a constitutional mandate for this

court to make an independent policy choice.

We also reject the argument from D.H. and the

Center that the statute inevitably makes the female

the sole arbiter of whether a male can be a father toa

child his sperm helps to conceive. This may be true, as

we discussed above, once a donation is made, a recipi-

ent who becomes pregnant through artificial insemi-

nation using that donation can refuse to enter into an

App. 38

agreement to provide for donor paternity. This does

not make the requirement of written agreement

unconstitutional. Indeed, it is consistent with United

States Supreme Court precedent making even a

married pregnant woman the sole arbiter, regardless

of her husband's wishes, of whether she continues a

pregnancy to term. See Planned Parenthood of Mis-

sourt v. Danforth, 428 U.S. 52, 69-71, 49 L. Ed. 2d

788, 96 S. Ct. 2831 (1976). As discussed above, before

a donation is made, a prospective donor has complete

autonomy to refuse to facilitate an artificial insemina-

tion 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. See Note and Comment, A Tale of Three Women:

A Survey of the Rights and Responsibilities of Unmar-

ried Women Who Conceive by Alternative Insemination

And A Model for Legislative Reform, 19 Am. J. L. &

Med. 285, 304 (1993) (absence of executed writing

evidence donor failed to, in words of Lehr, "grasp

opportunity" to parent; chance to condition donation

upon execution of agreement puts donor in control).

The requirement that a sperm donor's and recipient's

agreement be in writing does not violate D.H.'s due

process rights.

All of this being said, we cannot close our discussion

of the constitutionality of K.S.A. 38-1114(f) without

observing that all that is constitutional is not neces-

sarily wis: We are mindful of, and moved by, the

Center's 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

App. 39

insemination in this and other countries. In particu-

lar, Britain and The Netherlands now ban anonymous

sperm donations, near-perfect analogs to donations

from known donors who will have no role beyond

facilitating artificial insemination. These shifts

formally recognize the understandable desires of at

least some children conceived through artificial

insemination to know the males from whom they have

received half of their genes. The Human Fertilisation

and Embryology Authority Act of 1990, as amended by

Disclosure of Donor Information, Regulations 2004

No. 1511 (requiring, effective April 2005, British

donors' identities to be made available to donor-

conceived children when children become 18); Nether-

lands Embryos Bill, Article 3 Dutch Ministry of

Health, Welfare, and Sport (2004) www.minvws.nl/en

(effective June 2004, child born using donated sperm

have right to obtain information about biological

father at age 16). As one such child recently wrote,

"[t]hose of us created with donated sperm won't stay

bubbly babies forever. We're all going to grow into

adults, and form opinions about the decision to bring

us into the world in a way that deprives us of the

basic right to know where we came from, what our

history is and who both our parents are."

Clark, My Father was an Anonymous Sperm Donor,

The Washington Post, December 17, 2006, at

BO1l (also currently available at

http://www.washingtonpost.com/wp-dyn/

content/article/2006/12/15/AR2006121501820.html).

We sympathize. 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

App. 40

in certain circumstances, is the charge of the Kansas

Legislature, not of this court.

"Provided to a Licensed Physician"

D.H.'s next argument on appeal is that the district

judge erred in applying K.S.A. 38-1114(f) to him

because his sperm was not "provided to a licensed

physician," as required by the statute. Instead, it was

provided to S.H., who, in turn, provided it to the

medical personnel who performed the insemination.

D.H. opens this argument by citing a Kansas Court

of Appeals case involving a petition to terminate the

rights of a putative father for the proposition that

"(s]tatutes pertaining to adoption, relinquishment, or

termination of parental rights are strictly construed

as they affect a parent's liberty interest in the custody

and control of his or her children." In re J.A.C., 22

Kan. App. 2d 96, Syl. J 3, 911 P.2d 825 (1996). This

case has no influence on our de novo standard of

review here. As discussed at length with regard to the

constitutionality of K.S.A. 38-1114(f, absent a written

agreement to the contrary, D.H. is not a putative

father. He is a sperm donor only. His link to the twins

is purely, and solely, biological. It does not give rise to

a constitutionally protected right. See Lehr, 463 U.S.

at 261.

When we are called upon to interpret a statute, we

first attempt to give effect to the intent of the legisla-

ture as expressed through the language enacted.

When a statute is plain and unambiguous, we do not

speculate as to the legislative intent behind it and will

not read the statute to add something not readily

App. 41

found in it. We need not resort to statutory construc-

tion. It is only if the statute's language or text is

unclear or ambiguous that we move to the next

analytical step, applying canons of construction or

relying on legislative history construing the statute to

effect the legislature's intent. See CPI Qualified Plan

Consultants, Inc. v. Kansas Dept. of Human Resources,

272 Kan. 1288, 1296, 38 P.3d 666 (2002); State v.

Robinson, 281 Kan. 538, 539-40, 132 P.3d 934 (2006).

Again, K.S.A 38-1114(f) states in pertinent part:

"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... ." D.H.'s argument

focuses on the phrase "provided to licensed physician,"

essentially reading it to say "directly and personally

provided to a licensed physician" or "provided to a

licensed physician by the donor." This argument lacks

merit.

The language of the statute is clear and unambigu-

ous, and we will not add to it, as D.H. suggests. The

words "the donor" form the subject of the predicate "is

treated as if he were not the birth father." The lengthy

dependent clause "provided to a licensed physician for

use in artificial insemination of a woman other than

the donor's wife" modifies "semen." K.S.A. 38-1114(f

does not require the donor himself to provide his

sperm to the physician performing the insemination.

It requires only that the donor's sperm be provided to

the physician by an unspecified someone or something.

The fact that S.H. was that someone here did not

prevent application of the statute to this situation.

App. 42

"Unless Agreed to in Writing"

Assuming arguendo the constitutionality and

applicability of K.S.A. 38-1114(f), D.H. next argues

that the statute's requirement of a written agreement

should be deemed satisfied by the CINC petition filed

by S.H. or by the CINC petition and his paternity

petition, read together. He asserts that the statute

sets forth no requirement that a written agreement be

entered into at or before the time of the insemination |

and points out that the CINC petition referred to him

"56 times" as the twins' "father." S.H. argues that

there was no "meeting of the minds" between her and

D.H. regarding coparenting and that the pleadings

evidence none.

There is no technical definition of "agreed to" or

"writing" in the Kansas Parentage Act of which K.S.A.

38-1114(f) is a part. Although these words or forms of

them are defined elsewhere in Kansas statutes, see,

e.g., K.S.A. 2006 Supp. 84-1-201(3) (defining "agree-

ment” as used in Kansas version of Uniform Commer-

cial Code); K.S.A. 2006 Supp. 84-1-201(46) (defining

"written," "writing" as used in same), these defini-

tions, by their terms, are inapplicable. We therefore

give these words as used in K.S.A. 38-1114(f) the

meaning accorded them in everyday English. See GT,

Kansas, L.L.C. v. Riley County Register of Deeds, 271

Kan. 311, 316, 22 P.3d 600 (2001).

When we do so, there can be no doubt that the

pleadings filed by the parties are "in writing." How-

ever, interpreting them separately or together to prove

the parties "agreed to" D.H.'s status as a father would

require Lewis Carroll's looking glass. The absence of

App. 43

such an agreement necessitated the drafting and filing

of the pleadings in the first place. Their existence and

substance do not memorialize accord, rather, its

opposite. A CINC pet: ion to terminate D.H.'s parental

rights under K.S.A. 38-1531 may have been an odd

procedural vehicle for effecting S.H.'s desire—a court

order stating that D.H. never acquired any parental

rights under K.S.A. 38-1114(f). A declaratory judg-

ment action might have been better suited to her legal

position. But she and her counsel were in uncharted

waters. We will not hold that the pleadings constitute

a written agreement by operation of law.

Parental Rights Under K.S.A. 38-1114(a)(4)

In the final paragraphs of his brief on appeal, D.H.

argues that this case should be controlled by K.S.A.

38-1114(a)(4) rather than K.S.A. 38-1114(f). K.S.A. 38-

1114(a)(4) provides: .

"(a) A man is presumed to be the father of a child if:

"(4) The man notoriously or in writing recognizes

paternity of the child, including but not limited to a

voluntary acknowledgment made [by amendment of

birth certificate] in accordance with K.S.A. 38-1130 or

[filing of birth certificate under K.S.A.] 65-2409a, and

amendments thereto."

In his brief before the district court, D.H. attempted

to reserve "the right to make claims based on ratifica-

tion, estoppel, and common law," but this specific

contention under K.S.A. 38-1114(a)(4) was never

raised below. Nevertheless, given the status of this

App. 44

case as one of first impression and the potential for

denial of fundamental rights, see In re M.M.L., 258

Kan. 254, 261, 900 P.2d 813 (1995), we address its

merit.

A specific statute controls over a general statute.

See State ex rel. Tomasic v. Unified Gov. of Wyandotte

Co./Kansas City, 264 Kan. 293, 311, 955 P.2d 1136

(1998). Likewise, a specific provision within a statute

controls over a more general provision within the

statute. K.S.A. 38-1114(f) is far more specific to cases

involving artificial insemination by a sperm donor

such as D.H. than the general presumption of pater-

nity set out in K.S.A. 38-1114(a)(4). D.H.'s claim

under K.S.A. 38-1114(a)(4) is without merit.

Equity

For the first time in his appellate reply brief, D.H.

asserts that the district court must be reversed

because S.H. has “unclean hands." In essence, he

argues that he, a nonlawyer, was tricked by lawyer

S.H., who failed to inform him of the statute and

failed to explain how the absence of independent legal

advice or a written agreement could affect his legal

rights. He asserts that he asked S.H. about whether

he needed a lawyer or whether they should put their

arrangement in writing and was told neither was

necessary. This behavior, he alleges, may have consti-

tuted a violation of S.H.'s ethical duties as a licensed

lawyer.

Despite D.H.'s attempt in his district court brief to

reserve "the right to make claims based on ratifica-

tion, estoppel, and common law," this invocation of

App. 45

equity was never further preserved for review by

pursuit in the district court or by inclusion in his

opening appellate brief. See McGinley v. Bank of

America, N.A., 279 Kan. 426, 444, 109 P.3d 1146

(2005) (issue not briefed by appellant deemed waived,

abandoned); Titterington v. Brooke Insurance, 277

Kan. 888, Syl. J 3, 89 P.3d 643 (2004) ("[a] point

raised only incidentally in a party's brief but not

argued in the brief is deemed abandoned"); Board of

Lincoln County Comm'rs v. Nielander, 275 Kan. 257,

268, 62 P.38d 247 (2003) (issue not raised in district

court not preserved for appellate court). Even if we

would nonetheless be inclined to reach its merit, given

the posture of the case and the fundamental nature of

the rights in play, we also are prevented from doing so

by an inadequate appellate record of the underlying

facts. See State ex rel. Stovall v. Alivio, 275 Kan. 169,

172, 61 P.3d 687 (2003) (duty of party to furnish

appellate record sufficient to enable review of issue).

D.H. never proffered evidence to support his asser-

tions of nefarious conduct by S.H. The evidence he

presented to the district court focused only on the

existence of an oral agreement and his efforts at

support; even assuming all of this evidence to be true,

it is insufficient under what we have held is a consti-

tutional statute.

Generally speaking, mere ignorance of the law is no

excuse for failing to abide by it. State ex rel. Murray v.

Palmgren, 231 Kan. 524, 536, 646 P.2d 1091 (1982).

There may be a case in the future in which a donor

can prove that the existence of K.S.A. 38-1114(f) was

concealed, or that he was fraudulently induced not to

obtain independent legal advice or not to enter into a

App. 46

written agreement to ensure creation and preserva-

tion of his parental rights to a child conceived through

artificial insemination. This is not such a case.

| Affirmed.

ALLEGRUCCI, NUSS, LUCKERT, and ROSEN, JJ,

not participating.

LOCKETT, J., Retired, CAPLINGER and HILL, JJ,

assigned.’

"REPORTER'S NOTE: Justice Tyler C. Lockett,

Retired, was appointed to hear case No. 96,102 vice

Justice Allegrucci pursuant to the authority vested in

the Supreme Court by K.S.A. 20-2616. Judge Nancy L.

Caplinger and Judge Stephen D. Hill, of the Kansas

Court of Appeals, were appointed to hear case No.

96,102 vice Justices Luckert and Rosen respectively

pursuant to the authority vested in the Supreme

Court by K.S.A. 20-3002(c).

McFARLAND, C.J., concurring: I agree with the

majority's conclusion that K.S.A. 38-1114(f) is consti-

tutionally permissible and operates to bar D.H. from

asserting parental rights relative to the twins K.M.H.

and K.C.H.

I think it is helpful to consider subsection (f) in

context with other provisions of K.S.A. 38-1114. The

statute is lengthy and states the presumptions of

paternity in various factual situations. Illustrative

thereof is the following excerpt:

App. 47

"(a) A man is presumed to be the father of a child if:

"(1) The man and the child's mother are, or have

been, married to each other and the child is born

during the marriage or within 300 days after the

marriage is terminated by death or by the filing of a

journal entry of a decree of annulment or divorce.

"(2) Before the child's birth, the man and the child's

mother have attempted to marry each other by a

marriage solemnized in apparent compliance with

law, although the attempted marriage is void or

voidable and:

(A) If the attempted marriage is voidable, the child

is born during the attempted marriage or within 300

days after its termination by death or by the filing of

a journal entry of a decree of annulment or divorce; or

(B) if the attempted marriage is void, the child is

born within 300 days after the termination of cohabi-

tation.

"(3) After the child's birth, the man and tte child's

mother have married, or attempted to marry, each

other by a marriage solemnized in apparent compli-

ance with law, although the attempted marriage is

void or voidable and:

(A) The man has acknowledged paternity of the child

in writing;

(B) with the man's consent, the man is named as the

child's father on the child's birth certificate; or

(C) the man is obligated to support the child under

a written voluntary promise or by a court order.

"(4) The man notoriously or in writing recognizes

App. 48

paternity of the child, including but not limited to a

voluntary acknowledgment made in accordance with

K.S.A. 38-1130 or 65-2409a, and amendments thereto.

"(5) Genetic test results indicate a probability of 97%

or greater that the man is the father of the child."

K.S.A. 38-1114(a).

The statute further provides:

"(b) A presumption under this section may be

rebutted only by clear and convincing evidence, by a

court decree establishing paternity of the child by

another man or as provided in subsection (c). If a

presumption is rebutted, the party alleging the

existence of a father and child relationship shall have

the burden of going forward with the evidence.

"(e) If a presumption arises under this section, the

presumption shall be sufficient basis for entry of an

order requiring the man to support the child without

further paternity proceedings." K.S.A. 38-1114(b), (e).

The bulk of the statute is concerned with establishing

presumptions as to the paternity of a child. These are

presumptions that may be rebutted. Subsection (f) is

the final provision of that statute and is in stark

contrast to the rest of the statute. No presumption is

involved therein. Subsection (f) states:

"(f) 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.” K.S.A. 38-1114(f.

App. 49

The biological father of a child conceived under the

circumstance described therein is to be treated in law

as not being the birth father, absent an agreement in

writing.

To come under the statute, an unmarried woman

must desire to be impregnated by artificial insemina-

tion in a procedure by a licensed physician. She could

elect to have an anonymous donor from a sperm bank.

The statute would bar the donor from the rights of

parentage even if his identity were later determined.

If the woman elects to ask an acquaintance to be the

donor and he agrees, he has no parentage rights

unless the parties agree thereto in writing. If the

parties agree in writing, the donor is assuming not

only the privileges associated with parenthood but the

possible financial burden of child support for 18 years

or so. The man might feel flattered to be asked to be

the donor and even be assured no child support would

ever be sought. Without the statute, the donor would

likely have no defense to child support claims asserted

by the mother or the child.

Under the statute, absent an agreement in writing,

the prospective mother would truly become a single

parent upon a successful pregnancy, having assumed

all parental privileges, duties, and obligations to any

child born as a result of the artificial insemination. If

the donor she sought out wants to assume parental

privileges and responsibilities, and the prospective

mother does not want this and will not agree, the

would-be donor can say no deal and walk away. There

is no child and no issue as to future rights and/or

duties of the would-be donor. The prospective mother

can seek out a sperm bank, another artificial insemi-

App. 50

nation donor, proceed in some other manner outside

the subsection, or abandon the idea of pregnancy. The

subsection (f) provision appears to be aimed at protect-

ing both parties from unwanted duties and/or obliga-

tions being imposed without their consent in the very

limited factual situation to which it applies.

Further, as the majority notes, it is not ruling out

the possibility that some future factual situation

might result in the statutory bar being held inapplica-

ble under those specific facts.

CAPLINGER, J., dissenting: I respectfully disagree

with the majority's analysis of the constitutionality of

K.S.A. 38-1114(f) as applied to D.H. I would hold the

statute unconstitutional as applied to D.H. for the

reason that it violates his fundamental right to parent

his children without due process of law.

In reaching its conclusion that K.S.A. 38-1114(f

comports with due process, the majority analyzes at

least two extra-jurisdictional cases which hold that

statutes creating an absolute bar to donor paternity

violate due process rights as applied to a known

donor: McIntyre v. Crouch, 98 Or. App. 462, 780 P.2d

239 (1989), cert denied 495 U.S.905 (1990). (Oregon

statute's absolute bar to paternity violated due pro-

cess as applied to known sperm donor if donor could

establish on remand that he and child's mother agreed

that donor would be the natural father of the child);

and C.O. v. W.S., 64 Ohio Misc. 2d 9, 639 N.E.2d 523

(1994) (Ohio statute's absolute bar to paternity of

known donor violated due process as applied to donor

where mother solicited participation of donor and

App. 51

agreed that known donor would have relationship

with child).

Significantly, the majority concurs with "the

McIntyre and C.O. courts in their constitutional

analyses of absolute bar statutes." Slip op. at 34.

Nevertheless, the majority concludes it need not

arrive at the same result because "K.S.A. 38-1114(f)

provides exactly the sort of escape clause the Oregon

and Ohio courts found lacking-and

unconstitutional—in their statutes." Slip op. at 34.

I agree with the majority's conclusion that "absolute

bar" statutes like those at issue in McIntyre and C.O.

violate due process. I do not agree, however, that the

K.S.A. 38-1114(f) provision permitting a donor to "opt

out" of the statute's paternity bar saved the statute's

constitutionality under the facts of this case.

The statutory provision at issue here bears repeti-

tion at this juncture. K.S.A. 38-1114(f) provides:

"The donor of semen provided to a licenced 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." (Emphasis added.)

Before discussing the specific basis for my disagree-

ment with the majority's conclusion that the italicized

proviso renders the statute constitutional as applied

to D.H., I would first note that neither the McIntyre

court nor the C.O. court found, as the majority sug-

gests, that their respective state statutes were uncon-

stitutional because they lacked an “escape clause"

App. 52

providing for a written agreement between the par-

ties.

The court in McIntyre found the applicable statute

problematic because it barred the petitioner from the

rights and responsibilities of fatherhood “even if

respondent had agreed with [the donor that he would

have parental rights] before he gave her his semen in

reliance on that agreement." 98 Or. App. at 468. The

court noted the statute contained no qualifying

language and, in a footnote, compared a Washington

state statute which contained a written opt-out

provision similar to that found in K.S.A. 38-1114(f). 98

Or. App. at 468 n.2; see also In Interest of R.C., 775

P.2d 27, 33 n.7 (Colo. 1989) (recognizing in footnote

that "[a] growing number of legislatures have sought

to clear up this confusion by enacting laws that

extinguish parental rights of semen donors unless the

donor acknowledges his paternity in writing"). The

court in MclIntryre, however, did not determine

whether the addition of an opt-out provision like that

at issue here would have resolved its due process

concerns.

Moreover, while the court in C.O. did point out that

a statute that "absolutely extinguishes a father's

efforts to assert the rights and responsibilities of being

a father ... runs contrary to due process standards,"

it did not compare any statutes containing a written

opt-out provision. Further, it found its own statute

lacking because it did not take into account the

parties' oral agreement that the donor would have a

relationship with any child conceived of the insemina-

tion. 64 Ohio Misc. 2d at 12. The court in C.O. did not,

as the majority suggests, indicate that a written opt-

App. 53

out agreement would have ameliorated the court's due

process concerns.

In fact, the expansive rationale in C.O. suggests

otherwise:

"Public policy supports the concept of legitimacy,

and the concomitant rights of a child to support and

inheritance. [Citation omitted.] A father's voluntary

assumption of fiscal responsibility for his child should

be endorsed as a socially responsible action." 64 Ohio

Misc. 2d at 12.

Thus, while the courts in C.O. and McIntyre sug-

gested that it was their respective statute's "absolute

bar" that ran afoul of due process safeguards, neither

court held that a requirement permitting the parties

to opt out of the statute, so long as the agreement was

memorialized in writing, would satisfy due process

safeguards. As the majority recognizes, no court has

considered the specific issue facing this court.

For the reasons discussed below, I would find that

K.S.A. 38-1114(f's inclusion of a written "opt-out"

provision does not save it from the same fate as the

statutes considered by the courts in McIntyre and

C.O.-i.e., itis unconstitutional because it violates due

process as applied to the donor.

Requirement that donor take affirmative action to

protect his parental rights

In concluding that the opt-out provision in K.S.A.

38-1114(f} satisfies due process requirements, the

majority states that D.H.'s “own inaction before

donating his sperm" left him unable to meet the

App. 54

statute's requirements of a written agreement. Slip

op. at 38. (Emphasis added.) Therein lies the constitu-

tional problem with the statute. Fundamental rights

must be actively waived, rather than passively lost

due to inaction.

Initially, before analyzing this issue, I would note

that the terminology employed by the majority, 1.e.,

that D.H. failed to “opt out" of the statute, is a misno-

mer. In effect, the statute requires a known sperm

donor, regardless of any agreement or understanding

the donor may have as to his role in parenting a child

conceived from his sperm, to opt in to parenthood or

forever waive his right to parent. As discussed below,

under the circumstances of this case, the statute's

requirement that D.H. take affirmative action to

preserve his fundamental right to parent, or to "opt

in" to parenting, violates fundamental principles of

due process.

Pursuant to the Fourteenth Amendment to the

United States Constitution, no State shall "deprive

any person of life, liberty, or property, without the due

process of law." The Supreme Court has held that the

Fourteenth Amendment "guarantees more than fair

process" and “includes a substantive component that

‘provides heightened protection against government

interference with certain fundamental rights and

liberty interests. '‘[Citation omitted.]" Troxel uv.

Granville, 530 U.S. 57, 65, 147 L. Ed. 2d 49, 1208S. Ct.

2054 (2000). It is well established that the right to

parent is a fundamental right protected by the United

States Constitution. See, e.g., Troxel, 530 U.S. at 65-

66; Stanley v. Illinois, 405 U.S. 645, 651-52, 31 L. Ed.

2d 551, 92 S. Ct. 1208 (1972).

App. 55

The Supreme Court has further consistently held

that courts must "indulge every reasonable presump-

tion against waiver of fundamental constitutional

rights." Johnson v. Zerbst, 304 U.S. 458, 464, 82 L.

Ed. 1461, 58 S. Ct. 1019 (1938). "A waiver is ordi-

narily an intentional relinquishment or abandonment

of a known right or privilege" and thus must result

from a free and conscious choice. 304 U.S. at 464. And,

when faced with a waiver of a fundamental right,

courts "do not presume acquiescence in the loss of

fundamental rights." 304 U.S. at 464; see also Hodges

vu. Easton, 106 U.S. (16 Otto) 408, 412, 27 L. Ed. 169,

1S. Ct. 307 (1882) (right to trial by jury in a civil case

is a fundamental right and every reasonable presump-

tion must be indulged against its waiver).

The majority recognizes that K.S.A. 38-1114(f)

permits a donor to waive his right to parent simply by

his own inaction rather than through an intentional

act relinquishing that right. For this reason, I would

find the statute's "escape clause" does not satisfy due

process requirements.

Effect of "ignorance of the law" on an individual's

fundamental right to parent

Nor can I agree with the majority's conclusion that

D.H.'s ignorance of the statute's writing requirement

has no effect on the statute's application. Slip op. at

38. In support of this determination, the majority

essentially reiterates the often-stated principle that

"ignorance of the law is no excuse," and cites three

cases in support of its application of this principle to

the facts here: Lehr v. Robertson, 463 U.S. 248, 264,

App. 56

77 L. Ed. 2d 614, 103 S. Ct. 2985 (1983); Jhordan C.

vu. Mary K., 179 Cal. App. 3d 386, 389, 224 Cal. Rptr.

530 (1986); and State ex rel. Murray v. Palmgren, 231

Kan. 524, 536, 646 P.2d 1091 (1982). However, none

of these cases hold that an individual can relinquish

a fundamental right simply through ignorance of the

law.

As the majority notes, the Kansas Supreme Court

held in Murray, 231 Kan. at 536, that "[i]gnorance of

the law is no excuse." Further, the court referred to

the "impressive body of authority and the ancient

maxim" supporting this statement. 231 Kan. at 536.

However, the question before the court in Murray was

not whether an individual may waive a fundamental

right by ignorance of a law requiring affirmative

action to protect that right. Rather, the question in

Murray was whether the meetings conducted by the

board of trustees of a county hospital were covered by

the Kansas Open Meetings Act, in light of the board

members’ claim that any violation of the Act was in

"good faith" because they had been advised by the

county attorney that their meetings were not covered

by the Act. I simply cannot equate such "ignorance,"

and the effect of such ignorance, with a father's

preconception waiver of his right to parent a child

because of his ignorance of a statute requiring him to

"opt in" to parenting.

Jhordan C., 179 Cal. App. 3d 386, also cited by the

majority, is unpersuasive for the obvious reason that

it is not precedential authority. More importantly,

while the majority cites Jhordan C. in support of its

statement that D.H.'s ignorance of our Kansas statute

does not preclude its application here, the court in

App. 57

Jhordan made no determination whatsoever as to

whether a donor's ignorance of a California statute

would suffice to waive his fundamental right to

parent. Instead, the Jhordan C. court merely noted in

reciting the factual background that the parties were

"completely unaware of the existence" of the statute.

179 Cal. App. 3d at 389. Moreover, the court in

Jhordan C. ultimately concluded California's statute

could not bar the donor's rights because the donor's

sperm had not been provided to a licensed physician.

179 Cal. App. 3d at 397-98.

The third case cited by the majority in support of its

conclusion that the donor's "ignorance of the law is no

excuse," is Lehr, 463 U.S. at 264. There, the United

States Supreme Court considered whether a biological

father should receive notice of adoption when that

father never established a relationship with his child

and further failed to comply with a New York law

requiring him to file notice with a putative father

registry. The Court recognized that familial relation-

ships are "an interest in liberty entitled to constitu-

tional protection" and state statutes that take away

this right must comport with the Due Process Clause

of the Fourteenth Amendment to the United States

Constitution. 463 U.S. at 258.

As the majority points out, the Lehr Court held that

the putative father's ignorance of the requirement

that he must mail a postcard to the putative father

registry to guarantee his right to receive notice of the

adoption proceedings of his daughter, was not a

"sufficient reason to criticize the law itself." 463 U.S.

at 264.

App. 58

However, the majority's focus on this aspect of the

Lehr decision is misplaced in light of Lehr's recogni-

tion_and characterization of a father's fundamental

rights to parent.

The Lehr Court noted it was not ccsicerned with

whether the father had a significant relationship with

his biological daughter but, instead, was focused on

whether New York protected his opportunity as a

father to form that relationship. 463 U.S. at 262. The

Court examined New York's putative father registry

and found that because the biological father retained

the control to receive notice of adoption proceedings,

the Due Process Clause was not violated. 463 U.S. at

264.

_ In so ruling, the Court noted that the impetus for

New York's putative father registry was the holding in

Stanley v. Illinois, 405 U.S. 645, where the Supreme

Court struck down a statute that automatically

classified any man who fathered a child out of wedlock

as an unfit parent. The Court in Lehr further noted

that a special committee charged by the New York

Legislature with forming the law after Stanley was

supposed to "accommodate both the interests of the

biological fathers in their children and the children's

interests in prompt and certain adoption procedures."

463 U.S. at 263.

Thus, when considering Lehr and its application

here, it is vital to remember the Court upheld a

statute. that terminated the parental rights of a

biological father, but it did so in the context of a

pending adoption proceeding. Because a nonbiological

father figure was ready, willing, and able to assume

App. 59

the responsibilities of parenthood, the Lehr Court

found no reason to delay the child's adoption simply

because the previously absentee biological father

suddenly asserted rights, yet failed to take the steps

necessary--as provided by a statute--to preserve those

rights. 463 U.S. at 265-66.

Placed in context, the Lehr Court's affirmance of the

termination of the biological father's parental rights

makes sense, and the Court's observation that

"(pjarental rights do net spring full-blown from the

biological connection between parent and child" is

merited. 463 U.S. at 260 (quoting Caban v. Moham-

med, 441 U.S. 380, 397, 60 L. Ed. 2d 297, 99 S. Ct.

1760 [1979] [Stewart, J., dissenting] [ruling that the

adoption of two children by their stepfather would

violate the Equal Protection rights of the biological

father, who had constantly been involved with the

lives of the children)).

Here, however, we are not faced with a situation in

which an additional party seeks to assert parental

rights; instead, only the biological father seeks to

assert his rights to parent his children. Thus, the need

for a determination of parental rights does not exist in

the same urgency that it exists in an adoption situa-

tion where all parties involved, particularly the child,

are best served with clear laws and a certain ruling.

I would urge the majority to consider the complete

rationale of Lehr: "When an unwed father demon-

strates a full commitment to the responsibilities of

parenthood by 'com[ing] forward to participate in the

rearing of his child,' his interest in personal contact

with his child acquires substantial protection under

App. 60

the Due Process Clause." 463 U.S. at 261 (quoting

Caban, 441 U.S. at 392).

That is the scenario with which this court is faced.

A putative father has come forward to participate in

the rearing of his children, emotionally and finan-

cially; consequently, his interest in doing so is entitled

to full protection under the Due Process Clause.

Instead of being given this protection and an opportu-

nity to prove that he intended to actively parent his

children, D.H. has been subjected to the workings of a

statute cf which he was unaware, that required him to

“opt in" to fatherhood before ever donating his sperm,

or be forever barred from parenting his children.

I strongly disagree with the majority's conclusion

that D.H.'s own inaction, whether due to ignorance of

the law or otherwise, constituted a waiver of his rights

to parent. Because the rights to parent are fundamen-

tal, those rights may be waived only through an

intentional, free, and meaningful choice. Here, the

record indicates D.H. was not even aware of K.S.A. 38-

1114(f), much less its requirement that he must enter

into a written agreement formalizing his intent to

parent his child before he provided his sperm to S.H.

I would find the statute's requirement that a known

sperm donor affirmatively take action to preserve his

fundamental rights to parent constituted a violation

of due process as applied to D.H.

The State's interest in furthering predictability,

clarity, and enforceability

The majority declares that the K.S.A. 38-1114(f

requirement that any agreement regarding parenting

App. 61

be in writing "enhances predictability, clarity, and

enforceability." Slip op. at 37. Further, it suggests

that "avoidance of the limbo in which D.H. finds

himself in is a worthy legislative goal." Slip op. at 37.

"Clarity," while an admirable goal, has little do with

the constitutionality of this statute. Significantly, in

Stanley, 405 U.S. 645, the United States Supreme

Court addressed the allegations of clarity and admin-

istrative convenience as justifications for a purported

violation of the Due Process Clause. There, an unwed

father challenged an Illinois statute which resulted in

his classification as an unfit father and the removal of

his children from their home after the death of the

mother because he had not been married to the

children's mother. The State argued it was unneces-

sary to hold individualized hearings to determine the

fitness of unwed fathers before those fathers were

separated from their children because unmarried

fathers were "per se" unfit.

The Supreme Court disagreed and ruled in accor-

dance with the Due Process Clause that Stanley was

entitled to a fitness hearing before his children were

taken from him. 405 U.S. at 649. The Court specifi-

cally addressed the argument that individualized

hearings for unmarried fathers would create an

administrative inconvenience and noted that although

the State has an interest in prompt procedures, "the

Constitution recognizes higher values than speed and

efficiency." 405 U.S. at 656.

Thus, even though K.S.A. 38-1114(f) may provide a

quick and clear method to dismiss paternity actions,

it must comport with the values inherent in the

Constitution, namely due process of law.

App. 62

The Court in Stanley pointed out that prompt

procedures are not the only consideration important to

citizens:

“Procedure by presumption is always cheaper and

easier than individualized determination. But when,

as here, the procedure forecloses the determinative

issues of competence and care, when it explicitly

disdains present realities in deference to past formali-

ties, it needlessly risks running roughshod over the

important interests of both parent and child. It

therefore cannot stand." 405 U.S. at 656-57.

Kansas law provides a presumption that sperm

donors are not the legal parents of any children

conceived of the donated sperm, absent a written

agreement. In the case of a known sperm donor and

an unmarried woman, however, the donor should be

allowed the opportunity for a hearing to establish his

intent to be something other than a sperm

"donor"—i.e., to establish his paternity and rights as a

parent. Simply stated, I would find the statute's

clarity does not justify its constitutional violation.

The requirement of a "writing” under K.S.A. 38-1114(f)

It is interesting to note that in considering whether

the K.S.A. 38-1114(f) writing requirement may be met

by considering S.H.'s averments in her pleadings, the

majority references Lewis Carroll's “looking glass."

Slip op. at 47. ("[I]nterpreting [pleadings] separately

or together to prove the parties 'agreed' to D.H.'s

status as a father would require Lewis Carroll's

looking glass."). While I agree with the majority that

we cannot interpret the pleadings filed by S.H. (in

App. 63

which she referred to D.H. as the "father" of her

children at least 56 times) as the "writing" contem-

plated by K.S.A. 38-1114(f, I would find that S.H.'s

inconsistent pleadings and actions are evidence to be

considered by the district court in determining

whether the parties agreed that D.H. would play an

active role in the twins' life.

S.H. filed a child in need of care (CINC) petition the

day following the twins' birth seeking to terminate

D.H.'s parental rights. In the petition, she alleged

several reasons for terminating D.H.'s parental rights,

including D.H.'s failure to provide prenatal emotional

and financial support, which implied she intended

D.H. to play a role in the parenting process. Signifi-

cantly, no mention was made in the CINC petition of

K.S.A. 38-1114(f) or its potential application here. In

fact, it was not until petitioner filed an amended

petition more than 2 weeks after the initial petition

that mention was made of K.S.A. 38-1114(f) and its

presumption of nonpaternity.

Thus, I would remand for the district court to

consider all evidence relevant to the existence of an

agreement between the parties, including S.H.'s

inconsistent allegations regarding D.H.'s responsibili-

ties, her consistent reference to D.H. as the "father" of

her children, and her failure to rely upon the statutory

presumption in her initial petition.

As a final note, I agree that this court should not

place fathers in an "Alice and Wonderland" scenario

where the rules of the "chess game" are constantly

changing and Kansas children are sometimes left

without two supportive parents. And yet, it seems to

App. 64

me that rather than Lewis Carroll's looking glass, we

are looking at this case through a "funny mirror" at

the local carnival. It is apparent that D.H. seeks to be

a loving and supportive parent to the two children he

has biologically fathered—two children who have no

other putative father. And yet, by operation of a

statute of which D.H. was unaware, his rights to

parent these children were cut off before the children

were conceived with the use of his sperm. This is a

result we should not abide for D.H. or for his children

absent the protections of due process.

Conclusion

I would hold K.S.A. 38-1114(f) unconstitutional as

applied to D.H. as it takes away his fundamental

rights to parent his children without due process of

law. Further, I would remand this case with directions

to the district court to resolve the factual dispute

recognized by the majority here—i.e., whether D.H.

and S.H. agreed that D.H. would be the natural father

of K.C.H. and K.M.H. If the court concludes that such

an agreement existed, then it must hold that K.S.A.

38-1114(f) did not apply to extinguish D.H.'s rights

and must proceed to determine paternity and the

extent to which D.H. will be permitted to share the

rights and responsibilities of parenting his two chil-

dren.

HILL, J., dissenting: I must respectfully join with

Judge Caplinger in her dissent. I too agree that as

applied in this case, K.S.A. 38-1114(f) is unconstitu-

tional when applied to a known donor.

App. 65

But I raise my hand and ask a different question. Who

speaks for the children in these proceedings? As

applied by the majority in this case, this generative

statute of frauds slices away half of their heritage. A

man who was once considered a "putative father" in

the initial child in need of care proceeding is now

branded a mere “semen donor." The majority offers

the children sympathy. But is this in their best

interests? The trial court never got to the point of

deciding the best interests of the children because it

was convinced that such a consideration was barred

by the operation of K.S.A. 38-1114(f) to a known

donor.

None of the elaborate and meticulous safeguards our

Kansas laws afford parents and children in proceed-

ings before our courts when confronted with questions

of parentage have been extended to these children. A

quick glance over our procedures dealing with the

Kansas Parentage Act (K.S.A. 38-1110 e¢ seq.) or our

Code for Care of Children (K.S.A. 38-1501 et seq.)

reveals the great caution we take in this state when

courts must consider such relationships. While it is

true that an attorney was appointed to represent the

children in the original child in need of care case, the

record from their point of view remains silent. Instead

only the voices of mother and "semen donecr”" are heard

in district court and this court as well.

I agree with the Ohio Court of Common Pleas when

it said:

"A father's voluntary assumption of fiscal responsi-

bility for his child should be endorsed as a socially

responsible action. A statute which absolutely extin-

App. 66

guishes a father's efforts to assert the rights and

responsibility of being a father, in a case with such

facts as those sub judice, runs contrary to due process

safeguards. [Citation omitted.]" C.O. v. W.S., 64 Ohio

Misc. 2d 9, 12, 639 N.E.2d 523 (1994) (citing Lehr v.

Robertson, 463 U.S. 248, 77 L. Ed. 2d 614, 103 S. Ct.

2985 [1983]).

I think the same can be said about our statute.

App. 67

IN THE SUPREME COURT

OF THE STATE OF KANSAS

No. 96,102

IN THE INTEREST OF K.M.H., A CHILD UNDER

AGE EIGHTEEN, AND K.C.H., A CHILD UNDER

EIGHTEEN, IN THE MATTER OF PATERNITY OF

K.C.H. AND K.M.H BY AND THROUGH THEIR

NEXT FRIEND, D.H.,

Appellant,

v.

9.i1.,

Appellee.

ORDER

The Motion to Transfer ease No, 96,102 to this Court

pursuant to K.S.A. 20-3017 and Supreme Court Rule

8.02 (2005 Kan. Ct. R. Annot. 60) and the response to

the Motion to Transfer are noted. The above captioned

case is hereby transferred to the Supreme Court

pursuant to K.S.A. 20-3018(c).

BY ORDER OF THE COURT, this 10th day of

October 2006.

/s/ KAY McFARLAND

Chief Justice

App. 68

IN THE DISTRICT COURT OF SHAWNEE

COUNTY, KANSAS

In The Interest of )

KAITLYN M. HARRINGTON,) CASE NO. 05JC372

A Child Under Age Eighteen )

In The Interest of )

KADEN C. HARRINGTON, ) CASE NO. 05JC373

A Child Under Age Eighteen )

IN THE MATTER OF THE PATERNITY OF:

Kaitlyn M. Harrington and )

Kaden C. Harrington )

By and through, Daryl D. Hendrix ) CASE NO.

05D1223

Vs. :

Samantha R. Narrington

MEMORANDUM

Samantha Harrington has filed a Motion seeking

dismissal of any claims of Daryl D. Hendrix that he

has any parenting rights recognized by Kansas law

regarding the minor children Kaitlyn M. Harrington

and Kaden C. Harrington.

The Court has reviewed the pleadings and would

accept the stipulation offered in a_ telephone

conference held approximately December 20, 2005,

that the children were conceived as the result of a

medical procedure conducted by a physician in Kansas

City, Missouri.

App. 69

The Court would note that the briefs are of excep-

tional quality and were quite helpful to the Court.

The underlying facts are not in substantial dispute.

PRELIMINARY FACTUAL FINDINGS

Samantha R. Harrington (hereinafter Harrington)

is an. unmarried adult who desired to become a

parent through an artificial insemination proce-

dure.

Harrington desired to be impregnated with sperm

of a known donor.

Harrington was a friend of Daryl D, Hendrix

(hereinafter Hendrix) and approached him about

being a sperm donor.

Hendrix agreed to provide the genetic material

necessary for an artificial insemination procedure.

Both Harrington and Hendrix were Kansas resi-

dents, The original conversations and agreement

that Hendrix would be a sperm donor occurred in

Kansas.

Harrington and Hendrix now disagree as to

whether Hendrix was to have any parental role

beyond the donation of genetic material.

Harrington underwent two artificial insemination

procedures in Missouri. On the first procedure,

Hendrix,,accompanied Harrington to Missouri and

provided the genetic material to medical person-

nel. The first procedure did not result in a preg-

nancy.

App. 70

8. Hendrix did not go to Missouri for the second

procedure. He placed his genetic material into a

plastic container and gave it to Harrington. Har-

rington then took the container to the .fertility

clinic in Missouri and underwent a second artifi-

cial insemination procedure.

As a result of the second procedure, Harrington

became pregnant and gave birth to the minor

childrenwho are the subject matter of this litiga-

tion.

Additional factual findings will be made as neces-

sary to rule on the pending Motion.

CONFLICT OF LAW

HarringtOn requests the Court apply Kansas

substantive law. Hendrix requests the Court apply

Missouri law. Kansas has a statute regarding artifi-

cial insemination that strongly favors Harringtan.

Missouri has no similar statute.

The only Missouri connection to the dispute is the

physical act of a medical procedure.

Factors favoring the application of Kansas law

include the residence of both parties at all relevant

times, the children are residents of Kansas (and were

apparently born in Kansas), the discussions and

agreement leading to the furnishing of genetic mate-

rial occurred in Kansas and the second donation of

genetic material and the delivery by Hendrix of the

same occurred in Kansas.

App. 71

Choice of law questions involve resolution based on

fundamental fairness applied to the dispute at hand.

The parties did not "negotiate" for the application of

any particular jurisdiction's law in forming their

‘agreement. Therefore, the Court must resoive the

choice of law issue,

The Kansas connection is substantial. Hendrix has

made no allegations of inconvenience or unfairness to

the application of Kansas law from a procedural

context. .

The Court places some significance to the fact that

Hendrix did not physically go to Missouri to provide

genetic material, for the second procedure.His claim

that Missouri law should be applied is weakened by

the fact that on the procedure that resulted in the

- pregnancy Nendrix's involvement was physically

completed in Kansas.

The nexus of this dispute to Kansas is significant.

Since there are no compelling fairness arguments to

weigh, Kansas’ substantive !aw will be applied.

CONSTITUTIONALITY OF K.S.A. 38-1114(f)

Hendrix challenges the constitutionality of the

Kansas’. artificial insemination statute K.S.A.

38-114(f).

Law will always trail science and society. Histori-

cally, both law and society could harshly treat an

individual on the basis of matters beyond individual

control, legitimacy was shameful. Certain vocations,

educational institutions and careers were closed to

those who did not have married parents. Polite society

App. 72

would have at a minimum discouraged, and more

likely banned social contact with persons marked by

the stigma of illegitimacy.

Laws developed supporting the public policy of

legitimacy, support and claim to inheritance. Science

developed to prove paternaL involvement beyond a

marriage license or a court resolution of "He said - she

said.”

As science has further developed, pregnancy is not

solely caused by traditional sexual intercourse and

may involve genetic material from persons who have

never met or even from persons who are deceased.

Future courts will resolve matters regarding cloning

and other scientific advances that as of yet we cannot

even imagine.

This case is a matter of first impression in Kansas.

Counsel for Hendrix has cited authorities form Ohio

and California and a United States Supreme Court

decision which are interesting but not controlling.

In reviewing a statute, the court presumes constitu-

tionality and must find a statute to be constitutiona!

if it can reasonab!y do so within the apparent intent

of the legislature in passing The statute. State v.

Durrant, 244 Kan 522, 769 P.2d 1176, cert. denied 492

U.S. 923 (1989).

The Court declines the invitation to find K.SoA.

38-1114(f) unconstitutional. The public policy ad-

vanced appears to make good sense of advancing

reproductive options and avoiding litigation while

affording a method of protecting a donor's interests if

he so desires. The public policy embodied in the

App. 73

statute does not appear to violate any Kansas or

United States constitutional fights.

DOES K.S.A.38-1114(APPLY?

Hendrix contends that KoS.A. 38-1114(0 does

not apply because he provided the genetic material

to Harfington rather than to a licensed physician.

The factual contention that the genetic material was

taken to the clinic by Harrington is apparently not

contested. The question is whether the use of an

interested courier is significant.

Statutes can never anticipate every possible factual

scenario. As noted earlier, Courts are to honor the

apparent intent of the legislature when we can do so.

The plain language of K.S.A. 38-1114(f) anticipates

a medical procedure by a licensed physician would be

the ordinary course for artificial insemination. The

legislature chose not to get into the details of medical

support staff, courier services or other variables that

a given case might involve.

A procedure in a medical clinic was conducted and

two children were conceived. This procedure was as

anticipated by the parties. Is there an appropriate

distinction to draw between deiivery of genetic mate-

rial to an interested courier as compared to delivery of

genetic material to medical personnel?

Since the medical procedure which resulted in the

conception of the children was as contemplated by

Harrington and Hendrix, the court fails to see how

Hendrix can now complain that his interests are

App. 74

effected by the fact he delivered genetic material to

Harrington for delivery to medical personnel as

compared to his personal detivery of the genetic

material to medical personnel.

The court finds that K.S. A, 38-1114(f) generally

applies to this dispute.

DO THE CINC FILINGS CONSTITUTE A WRIT-

TEN AGREEMENT"?

Hendrix contends the child in need of care proceed-

ings initiated by Harrington which acknowledge he is

the "father" satisfies the "agreed to in writing" lan-

guage of K.S.A. 38-1114(f).

Counsel for Hendrix skillfully asks the court to

review other statutes and general rules of construc-

tion to conclude the "agreed to in writing" requirement

has been satisfied.

Certainly there could be scenarios where letters,

memorandum, e-mails or other indicia of understand-

ing should be interpreted together to see if a contract

has been formed.

However, the intent of Harrington in her CINC

filings is so clear and is in such conflict with the

position claimed by Hendrix that the court can simply

not accept that the CINC pleadings satisN the writing

requirement.

CONCLUSION

This matter could have, and perhaps should have,

been better handled from the beginning. The delay,

‘App. 75

expense, emotional turmoil and uncertainty caused by

this dispute was completely avoidable if the "agree-

ment" was documented.

The Court would find that K.S.A. 38-1 114(f) is

constitutional and applies to this dispute. Since there

is no written agreement.that Hendrix as a sperm

donor would be treated as a "birth father", the Court

finds he has no legal rights or responsibilities concern-

ing Kaitlyn Harrington and Kaden Harrington.

The authorities and arguments advanced by

Attorney Andrews are adopted by the Court to the

extent they are consistent with this opinion.

The Motion to Dismiss is sustained. Cases

05-JC-372 and 05-JC-373 are dismissed as moot. In

case 05-D-1223, Daryl D. Hendix is found not to be the

legal father of Kaitlyn M. Harrington and Kaden C.

Harrington.

Attorney Andrews is requested to prepare appropri-

ate journal Entries.

Date: December 27, 2005

/s} ROBERT J. SCHMISSEUR

DISTRICT JUDGE

XC: Susan Barker Andrews

Kurt L. James

Kevin J. Cook

App. 76

K.S.A. § 38-1114

KANSAS STATUTES

CHAPTER 38.--MINORS

ARTICLE 11.--DETERMINATION OF PARENTAGE

PARENTAGE ACT

38-1114. Presumption of paternity.

(a) A man is presumed to be the father of a child if:

(1) The man and the child's mother are, or have been,

married to each other and the child is born during the

marriage or within 300 days after the marriage is

terminated by death or by the filing of a journal entry

of a decree of annulment or divcrce.

(2) Before the child's birth, the man and the child's

mother have attempted to marry each other by a

marriage solemnized in apparent compliance with

law, although the attempted marriage is void or

voidable and:

(A) [f the attempted marriage is voidable, the child is

born during the attempted marriage or within 300

days after its termination by death or by the filing of

a journal entry of a decree of annulment or divorce; or

(B) ifthe attempted marriage is void, the child is born

within 300 days after the termination of cohabitation.

(3) After the child's birth, the man and the child's

mother have married, or attempted to marry, each

other by a marriage solemnized in apparent compli-

App. 77

ance with law, although the attempted marriage is

void or voidable and:

(A) The man has acknowledged paternity of the child

in writing;

(B) with the man's consent, the man is named as the

child's father on the child's birth certificate; or

(C) the man is obligated to support the child under a

written voluntary promise or by a court order.

(4) The man notoriously or in writing recognizes

paternity of the child, including but not limited to a

voluntary acknowledgment made in accordance with

K.S.A. 38-1130 or 65-2409a, and amendments thereto.

(5) Genetic test results indicate a probability of 97% or

greater that the man is the father of the child.

(6) The man has a duty to support the child under an

order of support regardless of whether the man has

ever been married to the child's mother.

(b) A presumption under this section may be rebutted

only by clear and convincing evidence, by a court

decree establishing paternity of the child by another

man or as provided in subsection (c). If a presumption

is rebutted, the party alleging the existence ofa father

and child relationship shall have the burden of going

forward with the evidence.

(c) If two or more presumptions under this section

arise which conflict with each other, the presumption

App. 78

which on the facts is founded on the weightier consid-

erations of policy and logic, including the best inter-

ests of the child, shall control.

(d) Full faith and credit shall be given to a determina-

tion of paternity made by any other state or jurisdic-

tion, whether the determination is established by

judicial or administrative process or by voluntary

acknowledgment. As used in this section, "full faith

and credit" means that the determination of paternity

shall have the same conclusive effect and obligatory

force in this state as it has in the state or jurisdiction

where made.

(e) If a presumption arises under this section, the

presumption shall be sufficient basis for entry of an

order requiring the man to support the child without

further paternity proceedings.

(f) 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.

App. 79

STATE STATUTES EXPLICITLY OR IMPLICITLY ADDRESS-

ING wan OF ARTIFICIAL INSEMINATION By UNMAR-

RIED WOMEN

ALA. CODE § 26-17-21: (b) The donor of semen provided

to a licensed physician for use in artificial insemina-

tion 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.’

A.R.S. § 25-5u1(B): A child who is born as the result of

artificia) insemination is entitled to support from the

mother as prescribed by this section and the mother's

spouse if the spouse either is the biological father of

the child or agreed in writing to the insemination

before or after the insemination occurred.’

CAL. FAM. CODE § 7613: (b) The donor of semen

provided to a licensed physician and surgeon for use in

artificial insemination of a woman other than the

donor's wife is treated in law as if he were not the

natural father of a child thereby conceived.®

1 This Alabama statute is part of Title 26. Infants and Incompe-

tents. Chapter 17 is the Alabama Uniform Parentage Act and

Section 21 is titled, “Artificial Insemination.”

* This Arizona statute is part of Title 25. Marital & Domestic

Relations. It is part of Chapter 5 titled, “Family Support Duties,”

and Article 1 titled, “General Provisions” Section 501 is titled,

“Duties of support; exemptions.”

° The statute is part of the California Family Code. It is a part

of Division 12 (Parent and Child Relationship), Part 3 (Uniform

Parentage Act), Chapter 2 (Establishing the Parent — Child

(continued...)

App. 80

COLO. REV. STAT. ANN. § 19-4-106(2): A donor is not a

parent of-a child conceived by means of assisted

reproduction, except as provided in subsection (3) of

this section.*

CONN. GEN. STAT. § 45a-775: A donor of sperm used in

A.I.D., or any person claiming by or through him,

shall not have any right of interest in any child born

as a result of A.I.D.°

DEL. CODE. ANN. TIT. 13 § 8-702: A donor is not a

parent of a child conceived by means of assisted

reproduction. § 8— 704: (a) Consent by a woman and

a man who intends to be a parent of a child born to

the woman by assisted reproduction must be in a

record signed by the woman and the man. This

requirement does not apply to the donor. (b) Failure

to sign a consent required by subsection (a) of this

section, before or after birth of the child, does not

preclude a finding of paternity if the woman and man,

during the first 2 years of the child’s life, resided

(...continued)

Relationship, and section 7613 (Natural father of child conceived

by artificial insemination; conditions).

* This is part of Colorado’s Uniform Parentage Act. Subsection

(3) provides that, “If a husband provides sperm for, or consents

to, assisted reproduction bv his wife as provided in subsection (1)

of this section, he is the father of the resulting child.

> Section 45A is in the Probate Courts and Procedure section of

the Connecticut Statutes. Chapter 830A deals with Children

Conceived through Artificial Insemination.

App. 81

together in the same household with the child and

openly held out the child as their own.®

F.S.A. § 742.14: The donor of any egg, sperm, or

preembryo, other than the commissioning couple or a

father who has executed a preplanned adoption

agreement under s. 63.212, shall relinquish all mater-

nal or paternal rights and obligations with respect to

the donation of the resulting children.’

IDAHO CODE ANN. § 39-5405: (1) The donor shall have

no right, obligation or interest with respect to a child

born as a result of artificial insemination. (2) A child

born as a result of the artificial insemination shall

have no right, obligation, or interest with respect to

such donor.®

§ 750 I.L.C.S. 40/3(b): The donor of semen provided to

a licensed physician for use in artificial insemination

other than the donor’s wife shall be treated in law as

® Chapter 8 is Delaware’s Uniform Parentage Act. Subchapter

VII is titled “Child of Assisted Reproduction.” Section 702 is

titled, “Parental status of donor,” and section 704 is titled,

“Consent to assisted reproduction.”

7 F.S.A.§ 742.14. This statute is titled “Donation of eggs, sperm,

or preembryos.” It is found in Title XLIII. Domestic Relations,

Chapter 742 Determination of Parentage.

8 Idaho Code Ann § 39-5405. This statute is entitled, “Rights of

donor, child, husband.” It is in Title 39 Health and Safety,

Chapter 54. Artificial Insemination.

App. 82

if he were not the natural father of the child thereby

conceived.®

(f) 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.”??

M.S.A. § 257.56. Donor not treated as biological

father. The donor of semen provided to a licensed

physician for use in artificial insemination of a mar-

ried woman other than the donor's wife is treated in

law as if he were not the biological father of a child

thereby conceived."

Mo. ANN. STAT. ) 210.824(2): The 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

° This Illinois statute is in Chapter 750. Families. Act 40 is the

Illinois Parentage Act and section 3 it titled, “Husband of

Husband of artificially inseminated wife; treatment as natural

father.”

10 Chapter 38 of the Kansas Code is titled, “Minors.” Article 11

is titled, “Determination of Parentage” and Section 1114 is titled,

“Presumptions of Paternity.”

‘t This Minnesota statute is part of “Public Welfare and

Related Activities.” It is part of Chapter 257 on “Children,

Custody, Legitimacy” of which section 256 concerns “Artificial

Insemination.”

App. 83

natural father of a child thereby conceived.”

MONT. CODE ANN. ) 40-6-106: (2) The donor of semen

provided to a licensed physician for usé in artificial

insemination of a married woman other than the

donor's wife is treated in law as if the donor is not the

natural father of a child conceived byartificial insemi-

nation.*

N.H. REV. STAT. ANN. § 168-B:3(2): Notwithstanding

any other provision of law, a man is presumed to be

the father of a child if:. (e) As an unmarried donor of

sperm for use in artificial insemination or in vitro

fertilization, he and an unmarried woman, who under

RSA 168-B:2 would be the mother of the child, follow

the procedures in RSA 168-B:10-12 or 168-B:13-15 and

agree in writing in advance of the procedure that the

donor shall be the father. 168-B:11 Liability of Sperm

Donor for Support. A sperm donor may be liable for

support only if he signs an agreement with the other

parties to that effect. *

12 This Missouri statute is part of Title XII. Public Health and

Welfare. Chapter 210 is “Child Protection and Reformation” and

is part of the Uniform Parentage Act. Section 824 is titled,

“Artificial insemination, consent required, duties of physician,

effect of physician's failure to comply with law--inspection of

records permitted, when.”

13 This Montana statute is part of Title 40. Family Law.

Chapter 6 it titled, “Parent and Child” and Part 1 is titled,

“Uniform Parentage Act.” Section 106 is titled, “Artificial

Insemination.”

1 This New Hampshire statute is in Title XII. Public Safety

(continued...)

App. 84

N.D. CENT. CODE § 14-20-60: A donor is not a parent

of a child conceived by assisted reproduction.”

N.J. STAT. ANN. § 9:17-44(b): Unless the donor of

semen and the woman have entered into a written

contract to the contrary, the donor of semen provided

to a licensed physician for use in artificial insemina-

tion of a woman other than the donor's wife is treated

in law as if he were not the father of a child thereby

conceived and shall have no rights or duties stemming

from the conception of a child.*®

N.M. STAT. ANN. § 40-11-6(B): Any donor of semen

provided to a licensed physician for use in artificial

insemination of a woman other than the donor’s wife

may be treated as if he were the natural father of the

(...continued)

and Welfare. Chapter 168-B is titled, “Surrogacy: Rules of

Parentage,” and Section 3 is titled, “Father-Child Relationship.”

‘5 Title 14 of the North Dakota code concerns “Domestic

Relations and Persons.” Chapters 14-20 are the states Uniform

Parentage Act. Section 702 concerns the “Parental Status of

Donor.” )

16 This New Jersey statute is found in Title 9: Children -

Juvenile and Domestic Relations Court. Chapter 17 is titled,

“Bastardly Proceedings,” Article 10 is titled, “Parentage,” and

section 44 is titled, “Artificial Insemination.”

App. 85

child thereby conceived if he so consents in writing

signed by him and the woman.””

OHIO REV. CODE ANN. § 3111.95(B): Ifa woman is the

subject of a non-spousal artificial insemination, the

donor shall not be treated in law or regarded as the

natural father of a child conceived as a result of

artificial insemination, and a child so conceived shall

not be treated in law or regarded as the natural child

of the donor. No action or proceeding under sections

3111.01 to 3111.18 or section 3111.38 to 3111.54 of

the Revised Code shall affect these consequences.”

10 OKL. ST. ANN. § 555: An oocyte donor shall have no

right, obligation or interest with respect to a child

born as a result of a heterologous oocyte donation from

such donor. A child born as a result of a heterologous

oocyte donation shall have no right, obligation or

interest with respect to the person who donated the

17 Chapter 40 on the New Mexico Code is on Domestic Affairs,

Article 11 is the Uniform Parentage Act of the state, and § 6 is

titled, “Artificial Insemination.”

18 This Ohio statute is found under Title XXXI. Domestic

Relations — Children. Chapter 3111 is titled, “Parentage.”

3111.95(A) references use of AI with a married couple. The

statute specifically excludes other Ohio statutes pertaining to

parent-child relationships (e.g., paternity), thereby effectively

barring any efforts to establish a parent-child relationship

between the donor and the child. This also acts as a bar to any

kind of argument based on children’s rights.

App. 86

oocyte which resulted in the birth of the child.”

OR. REV. STAT. § 109.239(1): If the donor of semen

used in artificial insemination is not the mother’s

husband: (1) Such donor shall have no right, obliga-

tion or interest with respect to a child born as a result

of artificial insemination; and (2) A child born as a

result of artificial insemination shall have no right,

obligation or interest with respect to such donor.”

TEX. FAM. CODE 160.702: A donor is not a parent of

a child conceived by means of assisted reproduction.”

UTAH. CODE ANN. § 78-45g-702: A donor is not a

parent of a child conceived by means of artificial

insemination.”

‘8 This Oklahoma statute is a part of Title 10. Children.

Chapter 24 is titled, “Artificial Insemination” and section 555 is

titled, “Rights, obligations and interest of oocyte donor respecting

child and child respecting donor.”

20 This statute is in Title 11. Domestic Relations. Chapter 109

is “Parent and Child Rights and Relationships.” Section 239 is

titled, “Rights of semen donors; rights of children born asa result

of artificial insemination.”

21 This statute comes from the Texas Family Code. Title 5 is

“The Parent-Child Relationship and the Suit Affecting the

Parent-Child Relationship. Chapter 160 is the state’s Uniform

Parentage Act, Subchapter H is “Child cf Assisted Reproduction.”

Section 702 concerns the “Parental Status of Donor.”

2 Title 78 is titled, “Judicial Code.” Chapter 45g is the Utah

Uniform Parentage Act. Part 7 is “Child of Assisted Reproduc-

tion” and section 702 is “Parental status of donor.”

App. 87

VA. CODE. ANN. § 20-158(a)(3): a donor is not the

parent of a child conceived through assisted concep-

tion, unless the donor is the husband of the gesta-

tional mother.”

WASH. REV. CODE § 26.26.705: A donor is not a parent

of a child conceived by means of assisted reproduc-

tion.”

WIS. STAT. § 891.40(2): The donor of semen provided

to a licensed physician for use in artificial insemina-

tion of a woman other than the donor’s wife is not the

natural father of a child conceived, bears no liability

for the support of the child and has not parental rights

with regard to the child.”

23 This statute is found in Title 20 — Domestic Relations.

Chapter 9 is titled, “Children of Assisted Conception.” Section

158 is titled, “Parentage of child resulting from assisted concep-

tion.”

24 This statute is found in Title 26, Domestic Relations.

Chapter 26 is the state’s Uniform Parentage Act and section 705

is titled, “Child of Assisted Reproduction — Parental Status of

Donor. In 2002, Washington repealed former RCW 26.26.050(2)

that stated that a donor who provided semen to a licensed

physician for insemination of a woman other than his wife would

not be considered the legal father of the child unless he and the

woman had agreed in writing that he would be the father. See

Stacey S. Bernstein, Washington’s 2002 Parentage Act: A Step

Backward for the Rights of Nonmarital Children, 30 Seattle U.L.

Rev. 205 (2006).

2° This statute is found in the “Testimony, Documentary

Evidence and Presumptions” portion of the Wisconsin statutes.

Chapter 891 it titled, “Presumptions.” Section 40 is titled,

‘ (continued...)

App. 88

Wyo. STAT. ANN. § 14-2-902: A donor is not a parent

of a child conceived by means of assisted reproduc-

tion.”

STATES WITH ARTIFICIAL INSEMINATION STATUTES

FOR MARRIED COUPLES BUT NOT UNMARRIED PARTIES

(TEN STATES PLUS TWO By CASE PRECEDENT).

ALASKA STAT. § 25.20.045; ARK. CODE ANN. § 9-10-

201; GA. CODE ANN. § 19-7-21; LA. C.C. ART. 188; MD.

CODE. ANN., EST. Y TRUSTS ) 1-206; MASS. GEN. LAWS

ANN. CH. 46, § 4B; MICH. COMP. LAWS ANN. §

333.2824; N.Y. DOM. REL. LAW § 73; N.C. GEN. STAT.

§ 49A-1; TENN. CODE ANN. § 68-3-306;

STATES WITH NO ARTIFICIAL INSEMINATION

STATUTES FOR EITHER MARRIED OR UNMARRIED

PARTIES (12 STATES)

HAWAII

IOWA

INDIANA

KENTUCKY

MAINE

MISSISSIPPI

(...continued)

“Artificial Insemination.”

*6 This statute is found under Title 14 — Children. Chapter 2

is titled, “Parents” and Section 902 is titled, “Child of Assisted

Reproduction.”

App. 89

NEBRASKA

NEVADA

PENNSYLVANIA

RHODE ISLAND

SOUTH CAROLINA

SOUTH DAKOTA

VERMONT

WEST VIRGINIA