concurring: I agree with the majority’s conclusion that K.S.A. 38-1114(f) is constitutionally permissible and operates to bar D.H. from asserting parental rights relative to the twins K.M.H. and K.C.H.
I think it is helpful to consider subsection (f) in context with other provisions of K.S.A. 38-1114. The statute is lengthy and states the presumptions of paternity in various factual situations. Illustrative thereof is the following excerpt:
“(a) A man is presumed to be the father of a child if:
*84“(1) The man and the child’s mother are, or have been, married to each other and the child is bom during the marriage or within 300 days after the marriage is terminated by death or by the filing of a journal entry of a decree of annulment or divorce.
“(2) Before the child’s birth, the man and the child’s mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is void or voidable and:
(A) If the attempted marriage is voidable, the child is bom during the attempted marriage or within 300 days after its termination by death or by the filing of a journal entiy of a decree of annulment or divorce; or
(B) if the attempted marriage is void, the child is bom within 300 days after the termination of cohabitation.
“(3) After the child’s birth, the man and the child’s mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is void or voidable and:
(A) The man has acknowledged paternity of the child in writing;
(B) with the man’s consent, the man is named as the child’s father on the child’s birth certificate; or
(C) the man is obligated to support the child under a written voluntary promise or by a court order.
“(4) The man notoriously or in writing recognizes paternity of the child, including but not limited to a voluntary acknowledgment made in accordance with K.S.A. 38-1130 or 65-2409a, and amendments thereto.
“(5) Genetic test results indicate a probability of 97% or greater that the man is the father of the child.” K.S.A. 38-1114(a).
The statute further provides;
“(b) A presumption under this section may be rebutted only by clear and convincing evidence, by a court decree establishing paternity of the child by another man or as provided in subsection (c). If a presumption is rebutted, the party alleging the existence of a father and child relationship shall have the burden of going forward with the evidence.
“(e) If a presumption arises under this section, the presumption shall be sufficient basis for entry of an order requiring the man to support the child without further paternity proceedings.” K.S.A. 38-1114(b), (e).
The bulk of the statute is concerned with establishing presumptions as to the paternity of a child. These are presumptions that may be rebutted. Subsection (f) is the final provision of that statute and is in stark contrast to the rest of the statute. No presumption is involved therein. Subsection (f) states:
*85“(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. 38-1114(f).
The biological father of a child conceived under the circumstance described therein is to be treated in law as not being the birth father, absent an agreement in writing.
To come under the statute, an unmarried woman must desire to be impregnated by artificial insemination in a procedure by a licensed physician. She could elect to have an anonymous donor from a sperm bank. The statute would bar the donor from the rights of parentage even if his identity were later determined. If the woman elects to ask an acquaintance to be the donor and he agrees, he has no parentage rights unless the parties agree thereto in writing. If the parties agree in writing, the donor is assuming not only the privileges associated with parenthood but the possible financial burden of child support for 18 years or so. The man might feel flattered to be asked to be the donor and even be assured no child support would ever be sought. Without the statute, the donor would likely have no defense to child support claims asserted by the mother or the child.
Under the statute, absent an agreement in writing, the prospective mother would truly become a single parent upon a successful pregnancy, having assumed all parental privileges, duties, and obligations to any child bom as a result of the artificial insemination. If the donor she sought out wants to assume parental privileges and responsibilities, and the prospective mother does not want this and will not agree, the would-be donor can say no deal and walk away. There is no child and no issue as to future rights and/or duties of the would-be donor. The prospective mother can seek out a sperm bank, another artificial insemination donor, proceed in some other manner outside the subsection, or abandon the idea of pregnancy. The subsection (f) provision appears to be aimed at protecting both parties from unwanted duties and/or obligations being imposed without their consent in the very limited factual situation to which it applies.
*86Further, as the majority notes, it is not ruling out the possibility that some future factual situation might result in the statutory bar being held inapplicable under those specific facts.