Fall 2006 open memo assignment ai sperm donor paternity rights pleadings doc

IN THE DISTRICT COURT OF JOHNSON COUNTY, KANSASDIVISION 5

In the Matter of the Paternity of: }CARSON L. WARREN and }CATALYN M. WARREN, by and }Through Their Natural Father }and Next Friend, }

}DAVID R. COVINGTON, }

}Petitioner, } Case No. 06-D-7419

}and }

}SARAH R. WARREN, }

}Respondent. }

____________________________________}

PETITION TO ESTABLISH PATERNITY AND CUSTODYAND FOR CHANGE OF NAME

COMES NOW, the Petitioner, David R. Covington , by and through his counsel,

Benjamin Swank, and hereby states and alleges as follows:

1. Petitioner is now, and has been more than sixty (60) days preceding the

filing of this Petition, an actual bona fide resident of the State of Kansas, and the Petitioner

is currently a resident in good faith of Johnson County, Kansas, residing at 7115 S.W.

Forest Drive, Olathe, Kansas 66219.

2. Two (2) children were born to the parties during this relationship, to wit:

Catalyn M. Warren, d/o/b June 18, 2006, and

Carson L. Warren, d/o/b June 18, 2006.

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3. Petitioner, David R. Covington, upon information and belief, is the father of

the afore-mentioned children, and genetic testing should be ordered for the parties to

confirm the Petitioner’s paternity of the children.

4. If, as Petitioner alleges upon information and belief, he is determined

genetic testing to be the father of the children, Petitioner alleges that they were conceived

in Kansas City, Missouri, by means of artificial insemination.

5. At the time the children were conceived, Petitioner resided in Independence,

Missouri. Petitioner moved to his current residence in Olathe, Kansas on or about May 4,

2006, in anticipation of the children’s birth.

6. Petitioner is a fit and proper person to be awarded joint legal custody of

the minor children and is financially capable of providing for the needs of the children.

7. No child support or schedule of parenting time has yet been established.

8. Petitioner further states:

a) The children’s present address is 3629 S.W. Auburn Road, Topeka, Kansas.

b) The names and present address of persons with whom the children have lived within the past five (5) years are as follows:

Sarah R. Warren, 3629 S.W. Auburn Road, Topeka, Kansas.

c) The Petitioner is a party to Case No. 06-JC-372 and 06-JC-373 pending in Johnson County District Court.

d) In Case Nos. 06-JC-372 and 06-JC-373, Respondent is seeking termination of Petitioner’s parental rights.

e) The Petitioner knows of no person not a party to the proceedings who has physical custody of the children or claims to have custody or visitation rights with respect to the children.

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9. Because the minor children reside within the State of Kansas and both

parties currently reside in Kansas, this Court has jurisdiction over this matter.

10. Should genetic testing confirm, as Petitioner believes in good faith, that he

is the father of the children, they were conceived by artificial insemination in Kansas City,

Missouri, and therefore Missouri law applies with respect to the parental rights of the

Petitioner.

11. If it is determined, once genetic testing is complete, that David R.

Covington is in fact the father of the afore-mentioned children, as he in good faith

believes, Petitioner requests that Catalyn M. Warren’s name be changed to Catalyn M.

Covington, that Carson L. Warren’s name be changed to Carson L. Covington, and that

David R. Covington be named the natural father on both children’s birth certificates,

pursuant to K.S.A. 38-1130.

WHEREFORE, Petitioner prays this Court enter an Order for genetic testing to

establish paternity of the minor children; for custody of the minor children; for child

support and a schedule of parenting time; and upon the determination of paternity, for

change of the children’s names to Catalyn M. Covington and Carson L. Covington; for

David R. Covington to be named as the natural father on the children’s birth certificates,

and such further relief as the Court deems just and equitable.

Respectfully submitted,

Dated: June 28, 2006 ___________/s/____________________Benjamin SwankKansas Bar #189192913 S.W. Wanamaker RoadTopeka, Kansas 66614(785) 297-8002

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}and }

}SARAH R. WARREN, }

}Respondent. }

____________________________________}

AFFIDAVIT ACKNOWLEDGING PATERNITY

STATE OF KANSAS }} ss:

COUNTY OF JOHNSON }

I, DAVID R. COVINGTON, who is of lawful age, being first duly sworn on oath,

depose and state the following:

1. I am an individual presently residing at 7115 S.W. Forest Drive, Olathe,

Kansas 66219.

2. I hereby acknowledge the paternity of my son Carson L. Warren and

daughter Catalyn M. Warren, both born on June 18, 2006.

3. I hereby acknowledge my obligation to provide for the needs and expenses

related to the care and well-being of my son Carson L. Warren and daughter Catalyn M.

Warren.

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4. I hereby acknowledge my obligation to provide for the prenatal and natal

care of my son Carson L. Warren and my daughter Catalyn M. Warren.

FURTHER AFFIANT SAYETH NOT.

VERIFICATION

David R. Covington, who is of lawful age, being first duly sworn on oath, states:

He is the Petitioner herein; that he has read the above and foregoing document and knows the content thereof; that the statements and allegations contained therein are true and correct.

___________/s/___________________David R. Covington, Petitioner


COUNTY OF JOHNSON }

BE IT REMEMBERED, that on this 29th day of June, 2006, personally appeared before me, a notary public in and for the County and State aforesaid, David R. Covington, who is personally known to me to be the same person who executed this foregoing document.

IN WITNESS WHEREOF, I have hereunto set my hand and seal on the date last above written.

___________/s/___________________Notary Public

My Appointment Expires: _9/30/07__

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}and }

}SARAH R. WARREN, }

}Respondent. }

____________________________________}

APPLICATION FOR APPOINTMENT OF NEXT FRIEND

COMES NOW, the Petitioner, David R. Covington, and shows the Court that upon

information and belief, he is the natural father of Carson L. Warren and Catalyn M.

Warren, minor children; that Carson L. Warren and Catalyn M. Warren currently reside

with Respondent in or near Topeka, Kansas; that Petitioner desires to institute an action on

behalf of the minor children above-named in the District Court of Johnson County, Kansas,

to establish by genetic testing that he is in fact the natural biological father of Carson L.

Warren and Catalyn M. Warren, and that he, the Petitioner and the children’s putative

father, may be appointed as their next friend for the purpose of instituting this action.

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VERIFICATION

David R. Covington, who is of lawful age, having been first duly sworn, states:




COUNTY OF JOHNSON }



___________/s/___________________Notary Public


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}and }

}SARAH R. WARREN, }

}Respondent. }

____________________________________}

CONSENT OF NEXT FRIEND

I, DAVID R. COVINGTON, consent and am willing to serve as the Next Friend of

Carson L. Warren and Catalyn M. Warren, minor children, for the purpose of instituting an

action to determine their paternity.

VERIFICATION

David R. Covington, being of lawful age, having been first duly sworn, states:



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COUNTY OF JOHNSON }



___________/s/___________________Notary Public


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}and }

}SARAH R. WARREN, }

}Respondent. }

____________________________________}

ANSWER AND RESPONSE TO PETITION TO ESTABLISHPATERNITY, CUSTODY, AND CHANGE OF NAME

COMES NOW, Sarah R. Warren, by and through her attorney, Susan Anderson,

and for her Answer and Response to the Petition filed herein, denies each and every, all and

singular, the allegations and averments contained therein unless specifically admitted

therein.

1. Respondent is without sufficient information or knowledge to form a belief as to

the truth of the allegations in paragraph 1.

2. Respondent admits that she has two children, namely Catalyn M. Warren and

Carson L. Warren, but denies that a relationship existed between Respondent and

Petitioner. Respondent challenges Petitioner’s acknowledgement of paternity pursuant to

K.S.A. 38-1114(f) on the basis that Petitioner was a sperm donor only, no written

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agreement ever existed between Petitioner and Respondent regarding artificial

insemination, and that absent a written agreement, Petitioner is not considered in law to be

the natural father of Catalyn M. Warren and Carson L. Warren.

3. Respondent denies the allegation in paragraph 3 in its entirety based on K.S.A.

38-1114(f), which makes clear that Petitioner is not considered in law to be the birth father

of Catalyn M. Warren and Carson L. Warren.

4. Respondent denies the allegation in paragraph 4 that Petitioner is the natural

father of Catalyn M. Warren and Carson L. Warren. Respondent admits the allegation in

paragraph 4 that the children were conceived in Kansas City, Missouri, by means of

artificial insemination.

5. Respondent admits the allegation in paragraph 5 that at the time the children

were conceived, Petitioner resided in Independence, Missouri. Respondent has

insufficient information to either admit or deny the second sentence of paragraph 5.

6. Respondent denies the allegation in paragraph 6 in its entirely and does not

believe that Petitioner is entitled to any type of custody based on K.S.A. 38-1114(f).

Further, Respondent does not believe Petitioner is a fit and proper person to be awarded

joint custody of Catalyn M. Warren and Carson L. Warren, as detailed in Petition to

Terminate Parental Rights filed in 06-JC-372 and 06-JC-373, currently pending in Johnson

County District Court.

7. Respondent admits the allegation in paragraph 7 that no child support or

schedule of visitation have been established and alleges that neither should be established

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as Petitioner is not considered in law to be the natural father of Catalyn M. Warren and

Carson L. Warren under K.S.A. 38-1114(f).

8. Respondent admits the allegations in paragraph 8.

9. Respondent admits the allegation in paragraph 9.

10. Respondent denies the allegation in paragraph 10 that the Petitioner is the father

of the children. Respondent admits that the children were conceived in the State of

Missouri as the Respondent’s fertility doctor is located in Kansas City, Missouri and the

artificial insemination took place in Kansas City, Missouri.

11. Respondent denies the allegation and request for a name change in its entirety

based on K.S.A. 38-1114(f), that David R. Covington is not considered in law to be the

natural father of Catalyn M. Warren and Carson L. Warren. Further, Respondent objects to

Petitioner’s request to change the children’s surname to Covington on the basis that the

consent of both parties is required under K.S.A. 38-1130. Respondent does not consent to

such a name change for a number of reasons, including but not limited to, the fact that it is

not in the best interest of her children. Respondent contends that absent her consent, both

Kansas statute and case law support her objection to changing the minor children’s name

from Warren to Covington.

_________/s/__________________Susan Anderson, #15897Attorney for Respondent

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COUNTY OF JOHNSON }

I, Sarah R. Warren, of lawful age, being first duly sworn upon my oath, according

to law, state that I am the respondent in the above matter and that the allegations and

averments contained in my Answer and Response to Petition are true and correct to the best

of my knowledge and belief.

_________/s/__________________ Sarah R. Warren

SUBSCRIBED AND SWORN before me this 14th day of June, 2006.

_________/s/__________________ ________12/31/08_____________Notary Public My Appointment Expires

CERTIFICATE OF SERVICE

Susan Anderson hereby certifies that on the 14th day of July, 2006, that she served a copy of the above and foregoing Answer and Response to Petition to Establish Paternity, Custody, and Change of Name, by U.S. Mail, first class, postage prepaid, addressed as follows:

Benjamin SwankAttorney at Law2913 S.W. Wanamaker RoadTopeka, Kansas 66614

_______________________________Susan Anderson, #15897

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}and }

}SARAH R. WARREN, }

}Respondent. }

____________________________________}

MOTION TO DISMISS

Respondent, Sarah R. Warren, by her attorney, Susan Anderson, respectfully asks

this Honorable Court to issue an Order dismissing the captioned action pursuant to K.S.A.

60-212(b)(6) for failure to state a claim upon which relief can be granted. In support of this

Motion, Respondent alleges as follows:

1. Petitioner lacks standing to file a paternity action pursuant to K.S.A. 38-

1114(f), which states,

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.

2. Petitioner David R. Covington’s acknowledgement of paternity is invalid

pursuant to K.S.A. 38-1114(f) in that Carson L. Warren and Catalyn M. Warren were not

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conceived as the result of a sexual relationship between the Petitioner and Respondent.

Rather, Petitioner was only the donor of semen provided to a licensed physician for the

purpose of inducing Respondent’s pregnancy by artificial insemination. Moreover,

Respondent has never been Petitioner’s wife, and the parties had no written agreement

concerning this matter.

3. In order for the donor of sperm to be treated in law as the natural father of a

child born to a woman who is not the donor’s wife, K.S.A. 38-1114(f) specifically requires

a “written” agreement between the sperm donor and the woman who is thus impregnated

by artificial insemination.

4. The express inclusion of the term “written” in K.S.A. 38-1114(f) makes

clear that absent a written document executed by the donor and the woman, a donor of

semen lacks parental rights with respect to any child conceived by use of sperm provided to

a licensed physician for purposes of artificial insemination, as in this case.

5. Absent such a written agreement, Petitioner David R. Covington has no

rights in connection with the minor children, Catalyn M. Warren and Carson L. Warren;

therefore, he lacks standing to file a paternity action and fails to state a claim upon which

relief can be granted.

6. Because Petitioner David R. Covington is not considered in law to be the

birth father and next friend of Catalyn M. Warren and Carson L. Warren, this action should

be dismissed with prejudice.

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WHEREFORE, Respondent prays the Court issue an Order dismissing Case No.

06-D-7419 with prejudice, and granting Respondent such other and further relief as the

Court deems just and equitable.


___________________________Susan Anderson, #15897Attorney for Respondent


I, Susan Anderson, do hereby certify that I have served a true and correct copy of the above and foregoing document on counsel of record by placing the same in the U.S. mail, postage prepaid, on the 28th day of July, 2006, addressed to:

Benjamin Swank2913 S.W. Wanamaker RoadTopeka, Kansas 66614Attorney for Petitioner

Kevin J. Jones999 S. Fairlawn RoadTopeka, KS 66614Guardian Ad Litem (Cases 06-JC-372 and 06-JC-373)

_______________________________Susan Anderson, #15897Attorney for Respondent

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IN THE DISTRICT COURT OF JOHNSON COUNTY, KANSAS

DIVISION 5




}and }

}SARAH R. WARREN, }

}Respondent. }

____________________________________}

MEMORANDUM IN RESPONSE TO RESPONDENT’S MOTION TO DISMISS

COMES NOW the Petitioner, David R. Covington, by and through his counsel,

Benjamin Swank, and in response to Respondent’s Motion to Dismiss submits the

following memorandum:

PRELIMINARY STATEMENT

This case and the related child-in-need-of-care (CINC) petition arise in the context

of a “known donor of sperm.” This is a case that involves nontraditional family structure

and artificial reproductive techniques. David Covington, Petitioner, and Sarah Warren,

Respondent, were friends who entered into an agreement that Respondent would bear a

child conceived by artificial insemination with Petitioner’s sperm. Because the parties

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were close friends, they did not memorialize their agreement. Mr. Covington to this day

still understands that he is the father of the children which born on June 18, 2006, Carson

and Catalyn. In reading the petition Respondent filed in the related CINC case, she

understood that Mr. Covington would be the father, but she claims that her agreement was

subject to a condition that he contribute to expenses of her pregnancy. Respondent claims

that Mr. Covington failed to pay and therefore he is merely a sperm donor. Petitioner

claims that he did in fact pay some contributions to the cost of Warren’s pregnancy, and in

any event the parties’ agreement was clear that he would be the father of the child or

children born as a result of the artificial insemination procedure.

K.S.A. 38-1114(f) provides that under certain conditions, a sperm donor is not to be

treated in law as a birth father. Warren claims that those conditions are met in this case.

Covington claims to the contrary that the conditions are not met because he did not provide

the sperm to a physician, but rather to Sarah Warren. Secondly, Covington claims that

Warren’s CINC petition is sufficient in itself to qualify as a writing, in which she agreed

that Petitioner, as the sperm donor, would be the birth father of the offspring. Whether

precedent or subsequent, any condition is absolutely irrelevant because the statute only

requires that the mother and donor must agree that the donor will be treated as the birth

father. The parties in this case clearly have conflicting recollections. However, Covington

contends that even if the recollections conflict, it is immaterial to the resolution of this

action. All the statute requires is that the parties agree at some point that Petitioner would

be treated as the birth father, and that they do so in writing.

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Initially, Warren filed a CINC petition in an effort to cut off the parental rights of

Covington. In response, Covington filed this paternity action, and subsequently Warren

recognized that she might have recourse under K.S.A. 38-1114(f). The course of events

shows that it was in fact the parties’ intent that Covington be considered the children’s

birth father, and whatever subsequent change of heart Respondent may have had is

immaterial. This court should hold that parties, as a matter of law, cannot modify the

bonds of parentage merely by agreement, written or otherwise.

There is absolutely no Kansas case law on point to assist in resolving the novel

issues in this case. The statutory framework in Kansas is similar but distinct from other

states that have adopted the Uniform Parentage Act (UPA). Covington strongly and

sincerely desires to be the father of his children in every sense of the word. He is confident

that the evidence forthcoming at trial will not support the allegations in the Respondent’s

CINC petition. Since the children have no any other presumptive or putative father, a Ross

hearing is not necessary. See In re Marriage of Ross, 245 Kan. 591, 783 P.2d 331 (1989).

STATEMENT OF UNCONTROVERTED FACTS

1. David R. Covington and Sarah R. Warren agreed to attempt for Sarah to

become pregnant through artificial insemination with David’s sperm.

2. David and Sarah are not married, but they know each other well.

3. On July 7, 2005, David and Sarah traveled together to the fertility clinic of

Dr. Gregory Parker, in Kansas City, Missouri, where artificial insemination was performed.

4. On July 7, 2005, David provided sperm to a physician for the artificial

insemination procedure.

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5. The artificial insemination on July 7, 2005 failed.

6. On September 10, 2005, David provided sperm in a plastic container to

Sarah at his Missouri home. Sarah provided the sperm to a Missouri physician, who

artificially inseminated her using David’s sperm sample.

7. Thereafter, Sarah became pregnant.

8. On June 18, 2006, Sarah gave birth to fraternal twins: a boy, Carson, and a

girl, Catalyn.

9. On June 19, 2006, Sarah filed a Child in Need of Care petition alleging in

part that David is the father of Carson and Catalyn.

10. On June 28, 2006, David filed this paternity action alleging that he is the

father of Carson and Catalyn.

11. Sarah has alleged in her Child in Need of Care (CINC) Petition, Johnson

Co. Case Nos. 06-JC-372 and 06-JC-373, that she expected prenatal support from David.

12. David has alleged that he offered and, in fact, did provide prenatal support.

13. On the day of their birth, June 18, 2006, David attempted to see Carson and

Catalyn.

14. David and Sarah did not enter into a prenatal joint parenting agreement, or a

written prenatal agreement recording their agreement with respect to the artificial

insemination or the ensuing pregnancy and birth.

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15. David Covington consented to the artificial insemination procedure and to

the provision of his sperm with the belief and understanding that he would be the father of

the future children conceived with his sperm.

16. Sarah Warren is a lawyer who practices in the field of family law and

parenting issues.

17. No physician in Topeka or Lawrence, Kansas, will perform artificial

insemination on an unmarried woman.

ISSUES

1. Under choice-of-law principles, does Kansas law or Missouri law govern

the artificial insemination agreement between Sarah Warren and David Covington?

2. If Kansas law applies, does K.S.A. 38-1114(f) apply, and if so, does it bar

Petitioner’s paternity action for lack of a written agreement?

3. If Missouri law applies, is Petitioner’s paternity action likely to prevail on

the merits?

DISCUSSION

This is a matter of first impression in the State of Kansas, and there are no cases on

point. The gist of Respondent’s argument is that Petitioner lacks standing to file a paternity

action because K.S.A. 38-1114(f) 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 the child thereby conceived unless agreed to in writing by the donor and the woman.

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The problem with Respondent’s argument is that the standing statute applicable to a

paternity proceeding is K.S.A. 38-1115, specifically K.S.A. 38-1115(a)(1): “A child, or

any person on behalf of such child may bring an action at any time to determine the

existence of a father and child relationship which is presumed under K.S.A. 38-1114.” The

standing statute makes clear that a child or any person may bring such action and therefore

has standing as a matter of law. See K.S.A. 38-1115(a)(1).

Kansas courts have typically not resorted to standing doctrines to cut off the

opportunity of a putative father to seek a paternity determination. See generally In re

D.B.S., 20 Kan. App. 2d 438 (1995) (discussing generally 14th Amendment and Due

Process rights of putative fathers.). In adopting a balancing test between the State’s interest

in protecting children and a putative father’s liberty interest, the Court of Appeals stated,

“It is clear that a bright line statement that the State’s interests in denying a determination

of paternity outweigh the putative father’s interest is inappropriate.” Id. at 453. A natural

father of a child who seeks parental involvement from the time of birth is typically found to

have acquired a constitutionally protected interest. Id. at 451-52. Thus, the putative father

of a child, even one born out of wedlock, clearly has a constitutionally protected liberty

interest, which confers standing to bring a paternity action.

The real issue raised by Respondent is whether the Kansas Legislature intended, by

adopting K.S.A. 38-1114(f), to deprive legal standing to a sperm donor to seek a

determination of parentage when the donated sperm is used by a physician for the purpose

of artificial insemination. The Kansas statute alters the statutory presumption of paternity,

not the standing statute, and therefore the issue should be determined by this court on its

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merits . Nor was the donor statute enacted as a stand-alone provision. Finally, the standing

language in Kansas is broader than the parallel language in the UPA.

Petitioner is not limited to the presumption of paternity based on consanguinity or

birth. K.S.A. 38-1114(a)(4) is also applicable to the facts of this case. The presumption of

paternity based on notoriety and acknowledgement is not displaced by the terms of

subsection (f) because it does not invoke the status of birth father or consanguinity. The

CINC petition filed by Respondent makes numerous admissions that Petitioner had

publicly and notoriously acknowledged that he is in fact the father of the children. By

filing this paternity action, Petitioner also satisfies the writing requirement of subsection (a)

(4). Petitioner thus has standing to proceed to the merits on that basis as well.

K.S.A. 38-1114(f) is not as clear a statement as Respondent suggests. First, the

sperm must be provided to a physician. As Respondent acknowledged in her CINC

petition, Petitioner provided the sperm to Respondent at his home in Missouri, not to the

physician at his office. Thus, the statutory restriction “provided to a physician” cannot be

met, and Petitioner should be permitted to proceed with his claim that he is the children’s

birth father.

Furthermore, the legal presumption that a sperm donor may not be treated as a birth

father is not irrebuttable. It is modified by the phrase, “unless agreed to . . . by the donor

and the woman.” K.S.A. 38-1114(f). This phrase’s plain meaning does not require an

agreement on parenting; it merely requires that the man and the woman each agree that the

donor be treated as the birth father. The Petition in this case makes clear that Mr.

Covington agrees to be treated as the birth father, and the Respondent’s petition filed in the

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related CINC case effectively concedes that the mother admits as much. At minimum, the

CINC petition alleges that Respondent agreed that Petitioner would be treated as the father

if he paid her pregnancy expenses, changed his ways, or otherwise complied with her

wishes in some fashion.

While Petitioner believes that the parties’ agreement that he be treated as the birth

father was in fact unconditional, even a conditional agreement would suffice under the

statute’s clear language. Petitioner contends that a child’s natural parents, as a matter of

law, do not have the ability to create or modify the bonds of their parenthood by agreement

only. In this case, once Respondent agreed that the Petitioner would be treated as the

children’s birth father, all conditions required by K.S.A. 38-1114(f). were met. The

requirement that such an agreement be memorialized has been satisfied in this case by

reading the parties’ respective pleadings together. There is simply no statutory requirement

that the writing be joint, precedent, concomitant, or contemporaneous.

Challenging Petitioner’s standing in this paternity action is not the appropriate

means to resolve this case. For all of these reasons, Petitioner respectfully requests that

this Honorable Court deny Respondent’s Motion to Dismiss.


____________________________Benjamin SwankKansas Bar #189192913 S.W. Wanamaker RoadTopeka, Kansas 66614(785) 297-8002(785) 297-0744 Fax

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I, Benjamin Swank, hereby certify that a true and correct copy of the foregoing instrument was forwarded by U.S. mail, postage prepaid, on this __11th__ day of August, 2006, addressed as follows:

Susan Anderson, #158971234 S.W. Oakley, Suite CTopeka, Kansas 66604-1899Attorney for Sarah R. Warren


____________________________Benjamin Swank

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}and }

}SARAH R. WARREN, }

}Respondent. }

____________________________________}

REPLY BRIEF IN SUPPORT OF

RESPONDENT’S MOTION TO DISMISS

COMES NOW, Sarah R. Warren by and through her counsel, Susan Anderson, and

hereby replies to Petitioner’s Response to Motion to Dismiss, and provides further support

for dismissal of this action on the basis that Petitioner has failed to state a claim on which

relief may be granted.

The facts and circumstances of this matter are related to a pending CINC petition

originally filed in Johnson County District Court, Case Numbers 06-JC-372 and 06-JC-

373. The CINC petition was filed in response to circumstances raising a concern to

Respondent that David R. Covington was going to seek parental rights to her children, who

were conceived by artificial insemination performed by a licensed physician with the

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donated sperm from Petitioner. He responded to the CINC petition by immediately filing

this paternity action. Because David R. Covington has brought this paternity action

alleging certain facts already admitted and conceded by Sarah R. Warren in the CINC

petition, the initial facts and circumstances giving rise to the related CINC petition will be

discussed.

FACTUAL BACKGROUND

Sarah R. Warren is a reputable and experienced attorney who was well aware of the

requirements under the law when she sought to have and raise a child as a single parent. At

all times, her intent was to become medically able to conceive and to utilize the medical

technology available today with the assistance of a sperm donor in order to achieve her

objective of raising her own child. Ms. Warren consulted with medical experts in fertility,

underwent numerous treatments and substantial expense, and performed research into the

anonymous sperm bank system of conception — all on her own — in order to conceive.

When concerns arose surrounding the notion that a child born of an anonymous

sperm donor could encounter medical difficulties that could necessitate access to the

child’s medical history, and the fact that an anonymous donor would eliminate the

opportunity to gain potentially life-saving medical assistance that genetically related

persons often supply (such as bone marrow donation or organ donation), Sarah R. Warren

considered the option of artificial insemination using genetic material (sperm) acquired

from a known sperm donor. See Kern & Ridolfi, The Fourteenth Amendment’s Protection

of a Woman’s Right to be a Single Parent Through Artificial Insemination by Donor, 7

Women’s Rights L. Rptr. 251, 256 (1982). Ms. Warren followed the requirements of the

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law with regard to artificial insemination in Kansas using a known sperm donor. See

K.S.A. 38-1114.

Mr. Covington argues that merely because Ms. Warren brought a CINC petition

referring to him as the “Father,” this somehow completely destroys the parties’ original

intentions and the fact that the applicable statute was followed, consistent with the intent

that Mr. Covington be merely the known donor and not a parental figure for the children.

Covington argues that Warren is using the artificial insemination statute, K.S.A. 38-

1114(f), as an “afterthought” to her CINC petition, when this was actually her original

intention all along. Ms Warren’s CINC petitions were filed as the only legal means she

believed available to ensure that Petitioner, the known sperm donor, would not secure the

paternal rights he was apparently seeking in spite of the statute and contrary to the parties’

original intent. With that in mind, it is important at this juncture to focus on the meaning

and intent of the statute at issue to make a proper determination of the status of Mr.

Covington under applicable Kansas law. Although Kansas has enacted an artificial

insemination statute, there is no Kansas case law on point. Thus it will be necessary to

discuss case law from other states with similar statutes as persuasive authority.

DISCUSSION

I. Kansas law applies.

There is every reason to apply Kansas substantive law to this case and no reason to

apply Missouri law in this matter. There are constitutional limitations on choice of law.

The trial court’s duty is to settle on a choice of law that is neither arbitrary nor

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fundamentally unfair, and an important element of fairness is the expectation of the parties.

Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 822 (1985).

Here, virtually all matters relevant to the issues occurred in Kansas. Missouri does

not have any significant contact or aggregation of contacts that would create state interests

for Missouri. Missouri is not a significantly interested state, and the parties, particularly

Respondent, would have never expected Missouri law to apply merely by virtue of

choosing a Missouri-licensed fertility physician located in Kansas City, Missouri.

Although Petitioner provided the sperm donation to Ms. Warren while she was

visiting him at his Missouri home, she was a Kansas resident at the time he did so. Her

prenatal care took place in Kansas, and the children were born in Kansas. Moreover, the

children have resided with her in Kansas since their birth on June 18, 2006. Further, even

the Petitioner currently lives in Kansas. Nearly every one of the significant events

involved in this dispute has occurred in Kansas. That Ms. Warren happened to have the

artificial insemination procedure performed in Kansas City, Missouri, after Petitioner

agreed to donate his sperm while she was visiting him at his home, then in Missouri, are

not by themselves sufficient contacts with Missouri to justify applying the law of that state

in this case instead of Kansas law. Further, Ms. Warren’s appointment with the doctor in

Kansas City, Missouri to carry out the insemination procedure was not a critical aspect of

the parties’ agreement. The only act of any real legal significance occurring outside

Kansas was the actual insemination of Ms. Warren in Kansas City, Missouri. It is

irrelevant that Covington happened to reside in Missouri at the time the parties reached

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their verbal agreement, and that he donated the sperm for the insemination procedure there.

For all of these reasons, Kansas law applies to this matter.

II. The meaning of the artificial insemination statute in Kansas.

K.S.A. 38-l 114(6)(f) is clear and unambiguous on its face. Specifically, it provides,

The donor of sperm 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.

Id..

When sperm is provided to a physician for artificial insemination in Kansas, the

statute presumes that the donor is merely a sperm donor, not a parent, absent a written

agreement to the contrary. Id. There was no written agreement between the parties to this

case. In fact, Mr. Covington has admitted that the parties never executed a written

agreement pertaining to his sperm donation.

Instead, Petitioner filed this action seeking to override the clear language of the

statute, just to gain rights to the children that he abandoned when he donated sperm to a

licensed physician for the purpose of artificial insemination. His belated change of heart

does not equate to a written agreement conferring parental rights.

Petitioner apparently argues that the pleadings in this case and the companion CINC

actions by themselves serve as a written agreement. This notion is simply absurd. A

written agreement contemplates a meeting of the minds. The parties’ respective pleadings

clearly show no such meeting of the minds. It is ridiculous to assert that Ms. Warren

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agreed that Mr. Covington would have parental rights and obligations simply by filing a

petition seeking termination of any parental rights he may or may not have.

Ms. Warren filed the CINC petition after Mr. Covington appeared at the hospital

and behaved erratically following the children’s birth. She did so not only to protect her

children, but also to enforce the verbal agreement. Under the parties’ unwritten

agreement, Petitioner promised simply to donate his sperm to Ms. Warren in exchange for

her offer to produce his biological offspring by means of artificial insemination, without

the trappings and commitment associated with a traditional, committed heterosexual

relationship. Ms. Warren had no other recourse under the law in which to obtain such

enforcement and protection other than to file a CINC petition.

Equally absurd is Mr. Covington’s argument that Ms. Warren’s use of the term

“father” to identify him in the CINC petition reflects her intent. Ms. Warren does not

dispute that as a sperm donor, Covington is the children’s biological father. However, she

contends that he is not the birth father pursuant to K.S.A. 38-1114(6)(f). The CINC

petition clearly references the agreement between the parties as an agreement that

Petitioner was a sperm donor only. Further, at the pretrial hearing, this Honorable Court

stated its intention to refer to the parties as mother and father for identification purposes

until an objection was raised by the guardian ad litem. Certainly this Court was not

presuming a legal relationship by this statement; nor was Ms. Warren doing so by using

“father” to refer to Covington in the CINC petition.

In the companion CINC case, Ms. Warren merely sought to ensure that the

agreement of the parties was followed and thus sought to preemptively terminate any

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potential rights Covington may have believed he had secured. Ms. Warren did not

anticipate financial support or any other parental obligation from Mr. Covington. She is

not arguing that if Mr. Covington were to provide financial support and expenses of the

pregnancy and delivery, he might be afforded the opportunity to be the legal father. Ms.

Warren merely raises these issues in her CINC petition to lend support for her argument

that Mr. Covington’s behavior during her pregnancy was consistent with his limited status

as a sperm donor only. Ms. Warren simply seeks to enforce the law of Kansas in

accordance with her intentions to establish the single-parent family she rightfully bargained

for - no more, no less. She simply seeks the benefit of that bargain without interference by

Petitioner.

Once again, this is a case of first impression in Kansas that comes down to an

interpretation of the statute, which specifically provides in no uncertain terms:

(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. 38-11l4(f) (emphasis added.)

There is absolutely no dispute that the semen was provided “to a licensed

physician.” The fact that Petitioner was too busy to go to the physician with Ms. Warren

the second time, after going with her the first time, should not result penalizing Respondent

for accepting the donation and providing it to the physician on her own, without any effort

on his part. This was not a “self-help” form of artificial insemination. Thus, Petitioner’s

argument that he did not “directly” provide the sperm to the physician cannot lead to an

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absurd result that the statutory presumption has not been met. The statute’s intent is clear

and unambiguous. Where the sperm donation is provided to a licensed physician for

purposes of artificial insemination for a woman other than his wife, he is presumably only a

sperm donor, absent a written agreement to the contrary.

Petitioner argues that the statute requires “the sperm donor” to provide the sperm

sample “directly to” a licensed physician in order for the statute to apply at all, and for the

statutory presumption of non-paternity to arise under the statute. This interpretation

violates the fundamental rule of statutory construction that where the meaning of a statute

can be discerned from the language provided by the legislature, additional words cannot be

added to change that clear meaning. In addition, such an interpretation would lead to an

absurd result.

The language of the statute controls. In the instant case, the parties assert different

versions of their pre-insemination agreement. This further proves the purpose of the statute

as a statute of frauds, requiring a written agreement to preserve the parental rights of a

sperm donor, who is not married to the mother, with respect to the offspring resulting from

artificial insemination. Under these circumstances, absent a written agreement, a sperm

donor simply has no parental rights to the offspring.

Had Petitioner intended to exercise parental rights to the children, he had the

opportunity to do so simply by entering into a written agreement with Ms. Warren. Had his

donation been conditioned on such rights, Ms. Warren would have surely rejected the offer

of the donation and followed through with the donation from the sperm bank that was

generally used by her doctor, with whom she had consulted before accepting Petitioner’s

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sperm donation. To confer parental rights in this instance, when Petitioner donated semen

to an unmarried woman for the purposes of artificial insemination in the absence of a

written agreement, would fly in the face of the clear language of the Kansas statute.

For unmarried women who attempt a pregnancy by artificial insemination by a

known donor in Kansas, the artificial insemination statute clearly creates a presumption of

non-paternity. While Ms. Warren does not dispute that the “biological father” of their

children is Mr. Covington, this is irrelevant to the legal determination whether he has

parental rights. When the Kansas Legislature amended the statute in 1994, it created a

general presumption of paternity as well as an exception in K.S.A. 38-11l4(f), creating a

presumption of non-paternity for a child born as a result of artificial insemination under the

supervision of a licensed physician.

The language of the statute is clear, and it reflects the clear intent of the Kansas

Legislature. Contrary to Petitioner’s assertions, the agreement was clear when he offered

his semen sample to Ms. Warren to be taken to the physician for insemination in

furtherance of her objective to achieve single parenthood. When Petitioner gave her that

sperm sample to take directly to the physician without a written agreement, he

relinquished all parental rights and interest in the offspring produced by the sperm sample

and any offspring of the artificial insemination procedure. The parties’ intent was further

manifested by Petitioner’s disinterest and lack of involvement during Ms. Warren’s

pregnancy.

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V. PRE-INSEMINATION INTENTION OF THE PARTIES

This matter is before the Court on a determination of law as to whether Mr.

Covington has stated a claim for which relief can be granted in light of the artificial

insemination statute and its presumption of non-paternity.

This is a straightforward case of statutory interpretation that leaves no room for an

argument by Mr. Covington that an oral agreement existed. Even more incredible is his

argument that filing the Respondent’s CINC petition is somehow tantamount to executing a

written agreement to co-parent; the actions of the parties speak to their intent as well.

Having researched the options available to her, Ms. Warren wisely chose to accept the

donation from a known donor for the medical history reasons already expressed. Ms.

Warren could have chosen insemination with sperm from an anonymous donor, and she

certainly would have done so if she could have imagined the donor would reappear to

assert rights as a father when Respondent intended him only to serve as a donor. Ms.

Warren knew the law and her options, and she made it clear that she intended to be a single

parent. It defies logic to willingly choose a known donor for the purpose of co-parenting

when she had no reason to subject her and her children to custody battles and parenting

time. This is exactly what she sought to avoid, and the choice is provided by law in Kansas

under the artificial insemination statute, K.S.A. 38-1114(f).

Mr. Covington claims he specifically has standing to bring this action pursuant to

K.S.A. 38-1115(a)(l) which provides “[a]child, or any person on behalf of such child may

bring an action at any time to determine the existence of a father and child relationship

which is presumed under KS.A. 38-1114.” K.S.A. 38-1115(a)(1) (emphasis added.) The

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problem with this contention is that the statute Petitioner cites, K.S.A. 38-1115, refers

generally to the presumption of paternity under the statute. However, the specific statute at

issue here is subsection (f) of K.S.A. 38-1114, which is a presumption of non-paternity.

Once Mr. Covington donated his sperm to be inseminated by a licensed physician, he lost

all rights to paternity, and thus, his standing in a paternity action. This is not a case in

which Mr. Covington had a relationship including sexual intercourse with Ms. Warren and

then later discovered such action had resulted in the birth of a child or children he wanted

to parent. He specifically donated his sperm for use in an artificial insemination technique

by a licensed physician, without securing a written agreement that he was to be anything

other than a sperm donor. He foreclosed any other opportunity at that point.

Petitioner misses the point entirely by arguing that Kansas courts have not typically

resorted to standing doctrines to “cut off the opportunity of a putative father to seek

paternity determination.” The problem with this argument is that due to the very specific

circumstances here involving artificial insemination, for which the Legislature provided a

presumption of non-paternity, Mr. Covington had already “cut off’ any such opportunity.

It is for the Legislature, not the courts, to choose between conflicting public

policies. When reviewing statutes enacted by the Legislature, the judiciary may not

evaluate the wisdom of the policies embodied in the legislation; absent a constitutional

prohibition, the choice among competing policy considerations is a legislative function.

K.S.A. 13-1114(f) provides that artificial insemination through a licensed physician

imparts no parental rights or obligations on the donor absent a written agreement to the

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contrary. Here, the Petitioner’s sperm sample was taken to a physician, who performed the

implant at the physician’s office, as had been done previously without success.

The statute simply makes no exception for “known” sperm donors, who will be

denied a paternity claim so long as the semen was provided to a licensed physician for

insemination of a woman who is not married to the donor. Conception through artificial

insemination offers single persons the opportunity to raise a child without involvement by

the biological father. Consequently, when an unmarried woman uses artificial

insemination to conceive a child, it is more reasonable to presume that she does not intend

to co-parent with the donor. As stated previously, there was no such agreement here that

Petitioner would be treated as the children’s father, and there certainly was no written

agreement, as expressly required by K.S.A. 38-1114(6)(f).

CONCLUSION

Petitioner seeks parental rights he waived, as a matter of law, when he donated

semen samples to Ms. Warren for artificial insemination by a licensed physician without

any written agreement that preserved his right to co-parent the children born of the artificial

insemination. Thus, he lacks standing to bring this paternity action. Ms. Warren does not

dispute the Petitioner’s biological factor in the conception of these children. However, this

matter must be resolved as a matter of law based solely upon the artificial insemination

statute, K.S.A. 34-1114(f).

Ms. Warren sought a known donor for artificial insemination for the purposes of

becoming a single parent. The donor cannot be allowed to come forward and announce

himself the “father” after the birth of the children. He is merely the sperm donor,

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consistent with the mutual intentions of the parties. As a mere sperm donor, he lacks

parental rights or obligations. The quid pro quo, of course, is that he is not obligated to

provide for the support of the children or their mother, or for their medical expenses. Nor

is he entitled to custody, visitation, change of name, or any other rights of a parent in the

absence of a written agreement with Respondent.

For the foregoing reasons, Sarah R. Warren respectfully asks this Court to dismiss

David R. Covington’s paternity action with prejudice.


________________________________Susan Anderson, #15897Attorney for Respondent


I, Susan Anderson, do hereby certify that I have served a true and correct copy of the above and foregoing document on counsel of record by placing the same in the U.S. mail, postage prepaid, on the 19th day of August, 2006, addressed to:

Benjamin Swank2913 S.W. Wanamaker RoadTopeka, Kansas 66614Attorney for Petitioner


_______________________________Susan Anderson, #15897Attorney for Respondent

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Fall 2006 open memo assignment ai sperm donor paternity rights pleadings doc

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