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Mothers, Fathers, Doctors and Lawyers

close-up of adult hand holding the hand of a sleeping newborn
photo by Bridget Coila

William Marotta, a man who happens to live in Kansas, donated sperm to help someone he knew have a baby. He never intended to be a father, but a court said he is one.

Jason Patric, a man who happens to live in California, also donated sperm to help someone he knew have a baby. Patric, however, was in a relationship with the woman and has said he intended to be a father. Yet a California court said he is not.

While there are a few other differences between these two men and their situations apart from the states in which they are domiciled, it is difficult to find rational reasons for their differing treatment by the courts or for why neither is getting the outcome he says he expected when he did a good deed.

Marotta is not famous apart from his court case, in which the state of Kansas sought $4,000 for a 4-year-old girl whom he has only met once and who already has two acknowledged parents. Patric, a film actor, has some notoriety (Julia Roberts once ran off with him after breaking an engagement to Kiefer Sutherland) and considerable Hollywood star power backing his cause in a legal dispute with Danielle Schreiber, his former girlfriend and mother of Gus, the boy they both claim as their own.

Marotta, unlike Patric, was not in a relationship with the woman who gave birth using his donated sperm. The mother was part of a lesbian couple who placed an advertisement on Craigslist. Marotta, who is married and otherwise childless, responded to the ad.

Marotta and the two women signed documents releasing his paternal rights. Patric signed documents, which he produced in court, that he said acknowledged his position as a father. But in both cases, the courts came to the conclusion that under the law, the documents did not give the men what they wanted.

In Kansas, a court ruled that because no licensed physician was involved in the artificial insemination, Marotta’s agreement with the child’s mothers was invalid. The state pursued him after the couple split up and one woman sought government assistance.

In California, Patric has gone more than a year without seeing Gus after Schrieber sought to deny him visitation and other parental rights. She points to the fact that Patric has never cohabited with her and her son, as well as Patric’s request that his name be kept off the birth certificate. (Patric contends that he merely wanted to spare the boy unwanted attention.) Patric counters that he and Schrieber worked together, using a fertility clinic, to have a child they could both call their own.

The two cases illustrate how our laws and the courts that apply them are struggling to keep up with the many ways in which we go about creating our families today. It is a topic financial and legal experts are giving increasing attention. One of them is my colleague ReKeithen Miller, who wrote about assisted reproduction for Sentinel, our firm’s newsletter, not too long ago.

ReKeithen happened to be sitting next to me last weekend as I worked on this column during a business flight to Brazil. He spotted one of my source documents describing Marotta’s predicament.

“I remember that case,” ReKeithen remarked. “He should have gone to a doctor before he donated sperm.”

“It seems to me he should have gone to a lawyer before he donated sperm,” I replied.

And so here we are: To make a modern American baby, you might need doctors and lawyers as well as mothers and fathers. Or sperm donors who might, or might not, be fathers.

The recent comedy film “Delivery Man” deals with the topic in a warm and lighthearted way, involving a donor who sires more than 500 children and eventually finds a place in their lives. I enjoyed the film, but it might not have been funny to someone who has had the sort of problems that Marotta and Patric face. (Patric does not appear in “Delivery Man.”)

A few decades ago, we saw the rise of recurring legal fights over end-of-life care. People wanted to know that their wishes for medical treatment would be respected and that they could delegate - or withhold - decision-making powers to designated family members or others close to them. Again, doctors and lawyers were dragged into matters that really were more about hearth and home.

States eventually responded with standardized forms for medical directives and health care proxies. If you follow the forms prescribed by your state, you can expect to get the results you intend. It is safe to use such forms without the help of a lawyer. You can readily find what you need on the Internet.

I suspect we will end up in the same place with assisted reproduction, sooner or later. In cases where one party merely intends to donate genetic material to another party, it ought to be possible to document that fact in advance and have the state recognize that being a father involves more than providing a few million sperm, or that being a mother requires more than just an ovum or two. States will no doubt want to avoid creating a loophole for the benefit of deadbeat dads, but we ought to be able to distinguish situations in which the obligations of parenthood are voluntarily assumed by one or two consenting adults, in a transaction in which creating a baby is the goal, from consensual sexual activity in which a baby may be a byproduct.

For now, happy Mother’s Day to everyone who undertakes that vital job, no matter how you happened to get it.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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