The Craigslist Sperm Donation and Ohio

In Kansas, Jennifer Schreiner and Angela Bauer, a lesbian couple, posted an ad on Craigslist seeking a sperm donor. The cost of artificial insemination can range from $300 to $700 a try and it can take four or more tries to be successful, a cost prohibitive process for some aspiring parents. Hence, the couple was likely seeking a less expensive alternative to a sperm bank. William Marotta, a married man, hoping to help the couple out, responded that he would be a willing donor.

The three signed a contract waiving Marotta’s parental right and responsibilities, the donation was made and Schreiner conceived. A year later, Schreiner and Bauer broke up and a year after that Schreiner was injured and applied for government assistance. Under Kansas law, a licensed physician must be present during artificial insemination. Because the law was not followed, a Kansas Court found that Marotta was not relieved of his parental right and responsibilities and would have to pay child support and reimburse the state for support of the child.

In most states, a sperm donor is not considered a father. However, some states, like Kansas as stated above, require the use of a physician in the donation process.

What would have happened to Mr. Marotta if he had answered the Craigslist ad in Ohio?
In Ohio, like Kansas, artificial insemination must be performed by a physician or a person under the supervision and control of a physician. Ohio law states that if a physician, or person under the supervision or control of a physician, does not meet all the legal requirements of a donation, including obtaining required information and written consents, it does not affect the legal status, rights or obligations of a child conceived. The law appears to seek to protect donors and intended parents from errors made by a physician. It does not appear to protect intended parents if they choose not to inseminate under the supervision of a physician in accordance with Ohio law. Hence, it would appear that Mr. Marotta may have found himself in the same situation in Ohio.

Does a spouse need to consent to artificial insemination?
The couple involved in the Craigslist ad case was not married.  What if they were a heterosexual married couple that did comply with state law regarding artificial insemination? If a married woman’s husband signs a written consent to the use of a donor’s sperm than the husband will be considered the natural parent of the child. If the husband does not sign a consent, he would still be the presumptive father. However, he could overcome the presumption by showing that he did not consent.

Now that same-sex marriage is the law of the land, how will the Courts deal with a lesbian spouse who is not carrying the baby? Marriage and custody laws in Ohio were written to recognize only one mother and one father.  Will the Courts redefine parenthood as they have redefined marriage? Please shared your comments.