LJWorld.com

Topeka — A parents' rights lawyer from Chicago is seeking a rehearing of a Kansas Supreme Court decision that upheld a state law concerning parental rights of sperm donors.

The court said last month that the law, which doesn't give sperm donors any parental rights unless there's a written agreement, is indeed constitutional. In a 4-2 opinion on Oct. 26, the court said the decision upholding the 1994 law is the first of its kind in the nation because no other state has ruled on a provision requiring a written agreement between mother and donor.

Attorney Jeffery M. Leving of Chicago has asked the court for a rehearing. Leving is representing donor Daryl Hendrix, who is in a dispute with Samantha Harrington over whether they had an oral agreement leading to parental rights for Hendrix.

Hendrix and Harrington were friends for a number of years, and he agreed to donate his sperm to help her become pregnant. Harrington gave birth to twins in May 2005.

No written agreement was signed between them, although Harrington is an attorney.

Kansas Supreme Court spokesman Ron Keefover said motions for rehearings are "rarely granted." Parties in a case have 30 days to seek a rehearing after the court's made a ruling. In a conference of the judges, the court decides whether to rehear a case, he said.

Leving said if the Kansas Supreme Court denies the request for a rehearing, Hendrix will appeal to the U.S. Supreme Court.

"This is a very important case, not just for Daryl," Leving said. "Fundamental constitutional rights shouldn't change from state to state, so the Supreme Court could bring uniformity in these types of cases."

Leving does not believe Hendrix would have lost his parental rights had his case been in Missouri.

"If this case was in Missouri, my client would have won," Leving said, "because in Missouri, a donor who is not married is not required by statute to opt into parenthood by signing an agreement prior to making the donation."

A donor who donates sperm at a sperm bank must sign a waiver to parental rights, and Hendrix signed nothing, Leving said. Hendrix planned to co-parent the children, the lawyer said.

Leving said that he thinks the court ruled against Hendrix because he's a man and that the children have a right to two parents.

"That is also a fundamental right, not only has the father been denied, but the children have been deprived the love and emotional and financial support from their dad," Leving said.

Harrington has maintained that she always intended to be a single mother.

Hendrix was present once when Harrington took a sperm sample to Missouri for insemination, but not at a second visit when insemination was successful.

Harrington went to court May 19, 2005 - the day after the twins were born. A Shawnee County district judge concluded several months later that Hendrix had no parental rights. Hendrix appealed.

Harrington had sought to have Hendrix's parental rights severed through a child in need of care petition, a step generally taken when a child is abandoned, neglected or abused by a parent. Her petition was never acted upon by the lower court, which dismissed the case.

Harrington's attorney, Susan Barker Andrews, told the court there was no evidence that either party knew what was required under state law to establish or waive paternity. But Harrington filed the district court petition to make her intentions clear when it was evident that Hendrix wanted more than she was offering.