R.S. v. R.S., 54670

• Decision Date: 27 October 1983
• Docket Number: No. 54670,54670
• Citation: 9 Kan.App.2d 39,670 P.2d 923
• Parties: R.S., Appellee, v. R.S., Appellant.
• Court: Kansas Court of Appeals

Page 923

670 P.2d 923

9 Kan.App.2d 39

R.S., Appellee, v. R.S., Appellant.

No. 54670.

Court of Appeals of Kansas.

Oct. 27, 1983.

Review Denied Dec. 19, 1983.

Syllabus by the Court

1. When a husband consents to heterologous insemination of his wife, that consent is presumed to continue through the time the wife becomes pregnant unless the husband establishes by clear and convincing evidence that such consent had been withdrawn.

2. A husband who with his wife orally consents to the treating physician that his wife be heterologously inseminated for the purpose of producing a child of their own is estopped to deny that he is the father of the child, and he has impliedly agreed to support the child and act as its father.

Lou Bjorgaard, Bonner Springs, for appellant.

Ernest C. Ballweg, of Cooke, Ballweg, Borth, Hunter & Simpson, Prairie Village, for appellee.

Before REES, P.J., ABBOTT, J., and HARRY G. MILLER, District Judge Retired, Assigned.

ABBOTT, Judge:

This appeal arises out of a divorce action. The main issues involve the husband's responsibility to a child conceived during the marriage by heterologous insemination (artificial insemination by donor). We have substituted initials for names in the caption and will refer to the parties as "husband," "wife" and "child." The appellant husband also contends that the trial court abused its discretion in determining the division of property.

The trial court held for the wife on the disputed issues. Thus, we review the facts in a light most favorable to her and consider all reasonable inferences to be drawn therefrom.

Part of the husband's argument concerns K.S.A. 23-128, -129 and -130, which read as follows:

"23-128. Artificial insemination; performance; consent. The technique of heterologous artificial insemination may be performed in this state at the request and with the consent in writing of the husband and wife desiring the utilization of such technique for the purpose of conceiving a child or children.

"23-129. Same; child is natural child at law. Any child or children heretofore or hereafter born as the result of heterologous artificial insemination shall be considered at law in all respects the same as a naturally conceived child of the husband and wife so requesting and consenting to the use of such technique.

"23-130. Artificial insemination; consent executed and filed; file not open to public. The consent provided for in this act shall be executed and acknowledged by both the husband and wife and the person who is to perform the technique, and an original thereof may be filed under the same rules as adoption papers in the district court of the county in which such husband and wife reside. The written consent so filed shall not be open to the general public, and the information contained therein may be released only to the persons executing such consent, or to persons having a legitimate interest therein as evidenced by a specific court order."

The parties were married in 1974. The wife first considered donor insemination in 1976 at the husband's suggestion. They consulted with a medical specialist at the Kansas University Medical Center concerning the procedure. The husband was present and orally consented for the procedure to be performed on his wife.

The treating doctor, despite being an expert in the field, was not aware that the husband should sign a written consent pursuant to K.S.A. 23-128. He did not require this husband, nor any other husband over a period of at least eight years, to do so. It was sometime after 1976 that the doctor began requiring the husbands of new patients to sign a consent form, so there are obviously a number of other children conceived by this process who are faced with a problem similar to that faced by the child in this case.

The wife made the appointments and received donor inseminations during her fertile periods for several months. She did not conceive during that time and so discontinued treatments. Although her husband denies it, she testified that he again orally consented on several occasions to her being artificially inseminated. Sometime during early 1980 she resumed treatment and immediately conceived. The same treating doctor inseminated her. The husband was aware of the treatments and did not object. Everyone concedes the husband had no contact with the treating doctor immediately prior to the successful treatment. The child was born on December 28, 1980. At no time during the marriage did the husband question that conception had occurred as a result of artificial insemination.

The trial court in its oral findings stated:

"It is clear from the evidence that no request and consent in writing was provided the physician. It is equally clear from the evidence that there was an actual request and consent made. K.S.A. 23-129 is the operative statute in this proceeding, and that statute does not require written consent. K.S.A. 23-128 does. The fact that the doctor in this case performed an act in a manner not authorized by statute will not affect the legitimacy of the child of the Plaintiff and the Defendant. It is also clear from the evidence that the Defendant never revoked his consent and in fact acquiesced and ratified the process from time to time."

The husband first argues that there was insufficient evidence to support the trial court's finding that the child was conceived by heterologous insemination. This argument borders on being frivolous. The wife testified the child was a product of heterologous insemination. The husband did not testify otherwise nor did he ever question that fact during the marriage. Counsel for the husband offered no evidence to the contrary and made no effort during cross-examination of the wife to inquire about any other possible explanation of the pregnancy. The trial court found that the child was conceived as a result of heterologous insemination and the record supports that finding.

The husband also argues (one short paragraph without legal authority) that the trial court did not make adequate findings of fact as required by K.S.A. 60-252 and Supreme Court Rule 165 (230 Kan. lxxxix) to permit meaningful review. He rehashes his above argument and adds that the trial court finds an actual consent and request was made but does not show who made them. As we view the record, the treating doctor stated that the husband gave his permission for the procedure and the wife's testimony is to that effect. The trial court found that consent had been given and "that the Defendant never revoked his consent"; thus, a specific finding was made and the findings made by the trial court are sufficient to permit meaningful review.

The husband's principal argument is that K.S.A. 23-128, -129 and -130 require the written consent of the husband before a child born as the result of heterologous insemination can be considered the same as a naturally conceived child of the husband. None of these statutes indicates whether a husband has a duty to support a child conceived by heterologous insemination with oral consent but without written consent of the husband. This question is one of first impression in Kansas, but other states have found a duty to support based on a husband's actions and the doctrines of equitable estoppel and implied contract.

In Gursky v. Gursky, 39 Misc.2d 1083, 242 N.Y.S.2d 406 (1963), the New York court found that a child born of heterologous insemination was not the legitimate issue of the husband even though he had consented in writing to the procedure, because there was no statutory procedure to legitimize such a child. Nevertheless, the court ordered the husband to support the child, reasoning:

"The husband's declarations and conduct respecting the artificial insemination of his wife by means of a third-party donor, including the husband's written 'consent' to the procedure, implied a promise on his part to furnish support for any offspring resulting from the insemination. This, in the light of the wife's concurrence and submission to artificial insemination, was sufficient to constitute an implied contract. 'A promise will be implied where the agreement is instinct with...