Court to lesbian couple: Fatherhood can't be contractually erased

A lesbian couple in New Jersey may be forced to share parental rights with a sperm donor they used to conceive their 1-year-old son.

Sheena and Tiara Yates are appealing a September court ruling that awarded visitation rights to a private sperm donor they hoped would have no relationship with their child. The case is déja vu for the couple: They lost a similar custody battle with the sperm donor for their older child.

The story exemplifies the complex legal and ethical questions that parents, children, and the courts are wrestling with as private and commercial sperm donation skyrockets.

The Yateses conceived their youngest child through at-home artificial insemination with the counsel of a physician. The sperm donor, Shawn Sorrell, signed an agreement relinquishing his parental rights to the child, but he later changed his mind.

Under New Jersey law, unless a physician carries out the insemination procedure, the parental rights of the father are not severed. The women say they did not understand the law.

“It’s a core mistake people make. The court says if you go to a physician and do it their way, [donors] don’t have a legal connection to the child,” Kimberly Mutcherson, a law professor at Rutgers-Camden, told the South Jersey Times, which first reported the story. “When you don’t have that anymore, you have two people on equal footing. At that point it’s just a custody proceeding.”

The couple’s attorney, John Keating, argues the at-home procedure should qualify because the women sought physician counsel. He also claims the law as-written disadvantages gay couples and couples who cannot afford fertility clinics and sperm banks.

“We don’t think this is an anti-LGBT decision,” Keating told the South Jersey Times. “But we do think it disparately impacts LGBT couples, and disproportionately impacts lower-income people.”

The court granted Sorrell visitation for a few hours each weekend, and he must pay $83 a week in child support. Sheena and Tiara are appealing the decision, hoping their May 2014 marriage in New Jersey will hold sway with the judge and allow them full custody of their son.

“All we want is a family,” Sheena Yates told the South Jersey Times. “And we can’t have kids without an outside party. It’s a lot for us to have to deal with.”

Similar cases are popping up all over the country. A Kansas case with similar facts and a similar ruling late last month had one stark difference: Neither the donor nor the couple wanted the sperm donor to be involved. The state did.

The Kansas Department for Children and Families filed the case in 2012 seeking to have the donor, William Marotta, declared the father so he could be responsible for public assistance paid by the state and start paying child support. Marotta donated his sperm to a lesbian couple in response to a Craigslist ad in 2009. He now has a 5-year-old daughter to support.

John Smoot, a judge for 22 years in Boston’s Probate and Family Court, argues sperm donation, primarily used today by single women and lesbian couples, ultimately is bad for kids and dads because it deliberately creates fatherless children. The industry’s consequences are often “degraded men who are absent fathers to children disturbed by the circumstances of their birth,” Smoot wrote.

The Associated Press contributed to this report.