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.

By Vicki Glembokci
Also published in Reader's Digest Magazine April 2010

Dad looking at babyStockbyte/Thinkstock

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.

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 »

  • Your Comments

    • Lia

      Hope she never wants child support.

    • My Opinion

      If he cares so much, I hope he opened a college fund account that he contributes to monthly so the twins will get a great education. Then at least he has done something beside donate his sperm.

    • dela10

      If a sperm donor wanted to help and be involved in the kid’s lives, the mother should agree to it and not be stubborn. Raising kids is hard work, let alone raising twins. Having extra hands is helpful to the mother and he is the biological father. If he wants to be involved in the twin’s lives, the mother should let him.

    • gigi

      It’s like King Solomon all over again. Isn’t anybody thinking of the children? It doesn’t appear to me they are. Everyone is thinking only of themselves. I really can’t imagine what kind of a mother she will be, she appears to me to only be thinking of herself. And what kind of a jerk of a father, gives no support to the mother, and shows up after the kids are born. Neither one, IMHO, will win parent of the year award, but having said that, I think both of them need to grow up, and be in the life of the children, if only for the children’s sake. I wonder what they will think of their “mother” when they grow up, and learn she has a very tiny heart, and kept them away from their natural father. I thought the best solution would have been for her to have custody, and the father to have visitation, just like a divorced couple. Or maybe on second thought take them away from both, and give them to two people who would be good and loving parents. (Only kidding unless the children continue to be abused, and yes I think it is abuse to deny a child at least some kind of a relationship with their parent, unless of course it is unsafe to do so).

    • natasha3

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    • Chris

      What kind of mother purposefully denies their child access to their father? It would take a cold heated (female dog) to do that. Legal definition aside, biologically he is the father and did everything he could to do what women have been wanting men to do for decades. The problem is he messed up by not getting it in writing and when it comes to custody, NO STATE is friendly WHAT SO EVER to men. Period. He didn’t get it in writing, and she took advantage. I’d have to say that by purposefully denying them access to a well rounded father speaks volumes about her parenting.

    • Allie

      I just think it’s sad that there are so many deadbeat dads (and moms) in the world, and here there is someone who actually wants to be present, and isn’t allowed.

    • cammy

      noone that makes a donation expects future attachment. The original plan was for him to be a sperm “donor”. This fact belies that any future attachment was expected. Although his change of heart in wanting to be involved is chivalry, he cannot expected the mother to change her life plans because he changed his mind.

    • DIVADCR

      This is in my own words deemed an easy complex situation., if a DNA were to be taken, then yes Hendrix is the father, however he did the one thing in this world today that is difficult, he trusted Harrington’s word and she took advantage., I feel this law is awful in some instances where there is no using this situation as an advantage to harass nor abuse the mother and or children. I believe its time to rework some of these laws as well, because life is not just in shades of black and white, laws should not be either. Unfortunately Hendrix will continue to lose in this matter which is sad, but in the end those children will get older and arrive at an understandable age, and with this comes reality and truths., and when Hendrix has the chance to explain to them what their mother did which was awful, and is ruthless., however will Harrington be able to explain it all away and deal with the fact that they can no longer look at her as they have in the past? When the past catches up with her how will she in not being able to take this back along with losing a longtime friend and others because of her deeds look at herself? Possibility also exists Harrington never intended to have any man in her life sharing those babies she may just have a significant other and together they devised a scheme to entrap Hendrix for the sperm for the mere purpose of the two of them to have a complete family and they felt better knowing the donor than not!

    • Hui Yan

      Two things are undoubted. First, Harrington is the biological father; second, he acted as a jerk during her pregnancy, whatever reasons he has got.

      A little personal opinion on whether Harrington should share the custody or out of luck. Firstly, it depends. Secondly, it depends not on mother’s (Hendrix here) preference or situation, but on father’s, i.e. Harrington’s. One is whether he is willing to share the custody and to be a satisfied father; the other one is whether he will be able to be a good father.

      A little personal suggestion to Hendrix. Every child needs a father. For the good of beloved children, it might be better to get rid of those self-involved and vain thoughts.