Should a Sperm Donor Share Custody?

She never would have agreed to let him be the donor if she had known he was going to expect to be active in parenting. Had he known she didn’t want him involved, he never would have done it. Who won the case? You be the judge.

Dad looking at baby

When Daryl Hendrix got the call that the twins were being born, he sped to his local hospital in Topeka, Kansas. The security guard at the entrance called the labor-and-delivery floor: “The father’s here,” he announced. But as the guard heard the response from the floor nurse, his face fell.

“You’re not allowed up there,” the guard told Hendrix.

“You’ve got to be kidding,” Hendrix said.

The twins’ mother, Samantha Harrington, said the father was not welcome. Hendrix was surprised. Nine months earlier, he’d handed Harrington, a longtime friend, a container of his sperm to take with her to a fertility doctor. According to Hendrix, the two prospective parents—she, an unmarried attorney; he, an unmarried businessman—had an oral agreement to share custody should Harrington conceive. She denied this.

On May 19, 2005, the day after being turned away, Hendrix arrived at the hospital with a video camera and was able to catch a glimpse of the twins in the nursery—the first and last time he saw them. Hendrix soon learned that Harrington’s attorney had filed a Child in Need of Care petition in Shawnee County District Court that morning. The petition aimed to sever Hendrix’s paternal rights on the grounds that he was “unfit” because he didn’t provide emotional or financial support to Harrington during her pregnancy. He later countered that she never made any specific demands and that he would now pay his share of support for the children, as well as reimburse Harrington for some of her prenatal medical expenses.

But the issue of custody remained the biggest source of conflict. “She never would have agreed to let him be the donor if she had known he was going to expect to be active in parenting,” the petition explained. On the contrary, Hendrix says now, had he known she didn’t want him involved, “I never would have done it.” According to the petition, Harrington chose a known donor—instead of using a sperm bank, where donors must remain anonymous and sign away their rights—only because she wanted access to him in case of any future medical issues with the kids.

Hendrix then filed his own petition to establish his paternity status. He requested joint custody and a visitation schedule with the children.

Several days later, Harrington filed again, this time invoking a 1994 Kansas statute stating that a man who donates sperm is not viewed as the legal father unless it’s agreed to in writing. The fact that Kansas sperm donors even have an opportunity to “opt in” to parenthood through a written agreement is unusual, says Joan Heifetz Hollinger, a family law expert at the University of California, Berkeley School of Law, who supported Harrington’s position. In most states, there are no such options. “If you provide sperm to a woman other than your wife,” Hollinger says, “you are not the father.”

Harrington, now 35, and Hendrix, 47, agreed on one thing: They had nothing in writing.

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She next motioned to dismiss his petition because, under Kansas law, he had no standing to file it—he was a sperm donor and nothing more. In December 2005, the Shawnee County District Court agreed: “Hendrix is found not to be the legal father.”

Hendrix took it to the next step. A year later, he sat in a wood-paneled courtroom in the Kansas Supreme Court, hoping to overturn the lower court’s decision. Flanked by a large group of friends, Hendrix listened as his legal team argued that the donor statute was unconstitutional because it denied Hendrix his “right to care, custody, and control of his children.” Hendrix’s attorney also cited the mother’s petition, which referred to Hendrix as the “father” 87 times.

Hollinger and 20 other family law professors filed a friend of the court brief on behalf of Harrington, arguing that Hendrix’s rights hadn’t been violated, because the legislature had made it clear that he didn’t have any: “He is not a legal father unless he and the mother agree otherwise in writing.” At the hearing, Harrington’s attorney said as much to the judges: Hendrix, she said, was “out of luck.”

Is the statute unconstitutional? Should Harrington share custody? Or is Hendrix, indeed, out of luck?

Next: The Verdict »

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