dissenting: I respectfully disagree with the majority’s analysis of the constitutionality of K.S.A. 38-1114(f) as applied to D.H. I would hold the statute unconstitutional as applied to D.H. for the reason that it violates his fundamental right to parent his children without due process of law.
In reaching its conclusion that K.S.A. 38-1114(f) comports with due process, the majority analyzes at least two extra-jurisdictional cases which hold that statutes creating an absolute bar to donor paternity violate due process rights as applied to a known donor: McIntyre v. Crouch, 98 Or. App. 462, 780 P.2d 239 (1989), cert denied 495 U.S. 905 (1990). (Oregon statute’s absolute bar to paternity violated due process as applied to known sperm donor if donor could establish on remand that he and child’s mother agreed that donor would be the natural father of the child); and C.O. v. W.S., 64 Ohio Misc. 2d 9, 639 N.E.2d 523 (1994) (Ohio statute’s absolute bar to paternity of known donor violated due process as applied to donor where mother solicited participation of donor and agreed that known donor would have relationship with child).
Significantly, the majority concurs with “the McIntyre and C. O. courts in their constitutional analyses of absolute bar statutes.” 285 Kan. at 72. Nevertheless, the majority concludes it need not arrive at the same result because “K.S.A. 38-1114(f) provides exactly the sort of escape clause the Oregon and Ohio courts found lacking— and unconstitutional—in their statutes.” 285 Kan. at 72.
I agree with the majority’s conclusion that “absolute bar” statutes like those at issue in McIntyre and C.O. violate due process. I do not agree, however, that the K.S.A. 38-1114(f) provision permitting a donor to “opt out” of the statute’s paternity bar saved the statute’s constitutionality under the facts of this case.
The statutory provision at issue here bears repetition at this juncture. K.S.A. 38-1114(f) provides:
“The donor of semen provided to a licenced physician for use in artificial insemination of a woman other than the donor’s wife is treated in law as if he were *87not the birth father of a child thereby conceived, unless agreed to in writing by the donor and the woman.” (Emphasis added.)
Before discussing the specific basis for my disagreement with the majority’s conclusion that the italicized proviso renders the statute constitutional as applied to D.H., I would first note that neither the McIntyre court nor the C.O. court found, as the majority suggests, that their respective state statutes were unconstitutional because they lacked an “escape clause” providing for a written agreement between the parties.
The court in McIntyre found the applicable statute problematic because it barred the petitioner from the rights and responsibilities of fatherhood “even if respondent had agreed with [the donor that he would have parental rights] before he gave her his semen in reliance on that agreement.” 98 Or. App. at 468. The court noted the statute contained no qualifying language and, in a footnote, compared a Washington state statute which contained a written opt-out provision similar to that found in K.S.A. 38-1114(1). 98 Or. App. at 468 n.2; see also In Interest of R.C., 775 P.2d 27, 33 n.7 (Colo. 1989) (recognizing in footnote that “[a] growing number of legislatures have sought to clear up this confusion by enacting laws that extinguish parental rights of semen donors unless the donor acknowledges his paternity in writing”). The court in Mclntryre, however, did not determine whether the addition of an opt-out provision like that at issue here would have resolved its due process concerns.
Moreover, while the court in C.O. did point out that a statute that “absolutely extinguishes a father’s efforts to assert the rights and responsibilities of being a father . . . runs contrary to due process standards,” it did not compare any statutes containing a written opt-out provision. Further, it found its own statute lacking because it did not take into account the parties’ oral agreement that the donor would have a relationship with any child conceived of the insemination. 64 Ohio Misc. 2d at 12. The court in C.O. did not, as the majority suggests, indicate that a written opt-out agreement would have ameliorated the court’s due process concerns.
In fact, the expansive rationale in C.O. suggests otherwise:
*88“Public policy supports the concept of legitimacy, and the concomitant rights of a child to support and inheritance. [Citation omitted.] A father’s voluntary assumption of fiscal responsibility for his child should be endorsed as a socially responsible action.” 64 Ohio Mise. 2d at 12.
Thus, while the courts in C.O. and McIntyre suggested that it was their respective statute’s “absolute bar” that ran afoul of due process safeguards, neither court held that a requirement permitting the parties to opt out of the statute, so long as the agreement was memorialized in writing, would satisfy due process safeguards. As the majority recognizes, no court has considered the specific issue facing this court.
For the reasons discussed below, I would find that K.S.A. 38-1114(f)’s inclusion of a written “opt-out” provision does not save it from the same fate as the statutes considered by the courts in McIntyre and C.O.—i.e., it is unconstitutional because it violates due process as applied to the donor.
Requirement that donor take affirmative action to protect his parental rights
In concluding that the opt-out provision in K.S.A. 38-1114(f) satisfies due process requirements, the majority states that D.H.’s “own inaction before donating his sperm” left him unable to meet the statute’s requirements of a written agreement. 285 Kan. at 75. (Emphasis added.) Therein lies the constitutional problem with the statute. Fundamental rights must be actively waived, rather than passively lost due to inaction.
Initially, before analyzing this issue, I would note that the terminology employed by the majority, i.e., that D.H. failed to “opt out” of the statute, is a misnomer. In effect, the statute requires a known sperm donor, regardless of any agreement or understanding the donor may have as to his role in parenting a child conceived from his sperm, to opt in to parenthood or forever waive his right to parent. As discussed below, under the circumstances of this case, the statute’s requirement that D.H. take affirmative action to preserve his fundamental right to parent, or to “opt in” to parenting, violates fundamental principles of due process.
*89Pursuant to the Fourteenth Amendment to the United States Constitution, no State shall “deprive any person of life, liberty, or property, without the due process of law.” The Supreme Court has held that the Fourteenth Amendment “guarantees more than fair process” and “includes a substantive component that ‘provides heightened protection against government interference with certain fundamental rights and liberty interests.’ [Citation omitted.]” Troxel v. Granville, 530 U.S. 57, 65, 147 L. Ed. 2d 49, 120 S. Ct. 2054 (2000). It is well established that the right to parent is a fundamental right protected by the United States Constitution. See, e.g., Troxel, 530 U.S. at 65-66; Stanley v. Illinois, 405 U.S. 645, 651-52, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972).
The Supreme Court has further consistently held that courts must “indulge every reasonable presumption against waiver of fundamental constitutional rights.” Johnson v. Zerbst, 304 U.S. 458, 464, 82 L. Ed. 1461, 58 S. Ct. 1019 (1938). “A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege” and thus must result from a free and conscious choice. 304 U.S. at 464. And, when faced with a waiver of a fundamental right, courts “do not presume acquiescence in the loss of fundamental rights.” 304 U.S. at 464; see also Hodges v. Easton, 106 U.S. (16 Otto) 408, 412, 27 L. Ed. 169, 1 S. Ct. 307 (1882) (right to trial by jury in a civil case is a fundamental right and every reasonable presumption must be indulged against its waiver).
The majority recognizes that K.S.A. 38-1114(f) permits a donor to waive his right to parent simply by his own inaction rather than through an intentional act relinquishing that right. For this reason, I would find the statute’s “escape clause” does not satisfy due process requirements.
Effect of “ignorance of the law” on an individual’s fundamental right to parent
Nor can I agree with the majority’s conclusion that D.H.’s ignorance of the statute’s writing requirement has no effect on the statute’s application. 285 Kan. at 75. In support of this determination, the majority essentially reiterates the often-stated principle that “ignorance of the law is no excuse,” and cites three cases in *90support of its application of this principle to the facts here: Lehr v. Robertson, 463 U.S. 248, 264, 77 L. Ed. 2d 614, 103 S. Ct. 2985 (1983); Jhordan C. v. Mary K., 179 Cal. App. 3d 386, 389, 224 Cal. Rptr. 530 (1986); and State ex rel. Murray v. Palmgren, 231 Kan. 524, 536, 646 P.2d 1091 (1982). However, none of these cases hold that an individual can relinquish a fundamental right simply through ignorance of the law.
As the majority notes, the Kansas Supreme Court held in Murray, 231 Kan. at 536, that “[ijgnorance of the law is no excuse.” Further, the court referred to the “impressive body of authority and the ancient maxim” supporting this statement. 231 Kan. at 536. However, the question before the court in Murray was not whether an individual may waive a fundamental right by ignorance of a law requiring affirmative action to protect that right. Rather, the question in Murray was whether the meetings conducted by the board of trustees of a county hospital were covered by the Kansas Open Meetings Act, in light of the board members’ claim that any violation of the Act was in “good faith” because they had been advised by the county attorney that their meetings were not covered by the Act. I simply cannot equate such “ignorance,” and the effect of such ignorance, with a father’s preconception waiver of his right to parent a child because of his ignorance of a statute requiring him to “opt in” to parenting.
Jhordan C., 179 Cal. App. 3d 386, also cited by the majority, is unpersuasive for the obvious reason that it is not precedential authority. More importantly, while the majority cites Jhordan C. in support of its statement that D.H.’s ignorance of our Kansas statute does not preclude its application here, the court in Jhordan made no determination whatsoever as to whether a donor’s ignorance of a California statute would suffice to waive his fundamental right to parent. Instead, the Jhordan C. court merely noted in reciting the factual background that the parties were “completely unaware of the existence” of the statute. 179 Cal. App. 3d at 389. Moreover, the court in Jhordan C. ultimately concluded California’s statute could not bar the donor’s rights because the donor’s sperm had not been provided to a licensed physician. 179 Cal. App. 3d at 397-98.
*91The third case cited by the majority in support of its conclusion that the donors “ignorance of the law is no excuse,” is Lehr, 463 U.S. at 264. There, the United States Supreme Court considered whether a biological father should receive notice of adoption when that father never established a relationship with his child and further failed to comply with a New York law requiring him to file notice with a putative father registry. The Court recognized that familial relationships are “an interest in liberty entitled to constitutional protection” and state statutes that take away this right must comport with the Due Process Clause of the Fourteenth Amendment to the United States Constitution. 463 U.S. at 258.
As the majority points out, the Lehr Court held that the putative father’s ignorance of the requirement that he must mail a postcard to the putative father registry to guarantee his right to receive notice of the adoption proceedings of his daughter was not a “sufficient reason to criticize the law itself.” 463 U.S. at 264.
However, the majority’s focus on this aspect of the Lehr decision is misplaced in light of Lehrs recognition and characterization of a father’s fundamental rights to parent.
The Lehr Court noted it was not concerned with whether the father had a significant relationship with his biological daughter but, instead, was focused on whether New York protected his opportunity as a father to form that relationship. 463 U.S. at 262. The Court examined New York’s putative father registry and found that because the biological father retained the control to receive notice of adoption proceedings, the Due Process Clause was not violated. 463 U.S. at 264.
In so ruling, the Court noted that the impetus for New York’s putative father registry was the holding in Stanley v. Illinois, 405 U.S. 645, where the Supreme Court struck down a statute that automatically classified any man who fathered a child out of wedlock as an unfit parent. The Court in Lehr further noted that a special committee charged by the New York Legislature with forming the law after Stanley was supposed to “accommodate both the interests of the biological fathers in their children and the children’s interests in prompt and certain adoption procedures.” 463 U.S. at 263.
*92Thus, when considering Lehr and its application here, it is vital to remember the Court upheld a statute that terminated the parental rights of a biological father, but it did so in the context of a pending adoption proceeding. Because a nonbiological father figure was ready, willing, and able to assume the responsibilities of parenthood, the Lehr Court found no reason to delay the child’s adoption simply because the previously absentee biological father suddenly asserted rights, yet failed to take the steps necessaryas provided by a statuteto preserve those rights. 463 U.S. at 264-65.
Placed in context, the Lehr Court’s affirmance of the termination of the biological father’s parental rights makes sense, and the Court’s observation that “ ‘[p]arental rights do not spring full-blown from the biological connection between parent and child’ ” is merited. 463 U.S. at 260 (quoting Caban v. Mohammed, 441 U.S. 380, 397, 60 L. Ed. 2d 297, 99 S. Ct. 1760 [1979] [Stewart, J., dissenting] [ruling that the adoption of two children by their stepfather would violate the Equal Protection rights of the biological father, who had constantly been involved with the fives of the children]).
Here, however, we are not faced with a situation in which an additional party seeks to assert parental rights; instead, only the biological father seeks to assert his rights to parent his children. Thus, the need for a determination of parental rights does not exist in the same urgency that it exists in an adoption situation where all parties involved, particularly the child, are best served with clear laws and a certain ruling.
I would urge the majority to consider the complete rationale of Lehr: “When an unwed father demonstrates a full commitment to the responsibilities of parenthood by comfing] forward to participate in the rearing of his child,’ his interest in personal contact with his child acquires substantial protection under the Due Process Clause.” 463 U.S. at 261 (quoting Caban, 441 U.S. at 392).
That is the scenario with which this court is faced. A putative father has come forward to participate in the rearing of his children, emotionally and financially; consequently, his interest in doing so is entitled to full protection under the Due Process Clause. Instead of being given this protection and an opportunity to prove *93that he intended to actively parent his children, D.H. has been subjected to the workings of a statute of which he was unaware, that required him to “opt in” to fatherhood before ever donating his sperm, or be forever barred from parenting his children.
I strongly disagree with the majority’s conclusion that D.H.’s own inaction, whether due to ignorance of the law or otherwise, constituted a waiver of his rights to parent. Because the rights to parent are fundamental, those rights may be waived only through an intentional, free, and meaningful choice. Here, the record indicates D.H. was not even aware of K.S.A. 38-1114(f), much less its requirement that he must enter into a written agreement formalizing his intent to parent his child before he provided his sperm to S.H. I would find the statute’s requirement that a known sperm donor affirmatively take action to preserve his fundamental rights to parent constituted a violation of due process as applied to D.H.
The State’s interest in furthering predictability, clarity, and enforceability
The majority declares that the K.S.A. 38-1114(f) requirement that any agreement regarding parenting be in writing “enhances predictability, clarity, and enforceability.” 285 Kan. at 74. Further, it suggests that “avoidance of the limbo in which D.H. finds himself in is a worthy legislative goal.” 285 Kan. at 75.
“Clarity,” while an admirable goal, has little do with the constitutionality of this statute. Significantly, in Stanley, 405 U.S. 645, the United States Supreme Court addressed the allegations of clarity and administrative convenience as justifications for a purported violation of the Due Process Clause. There, an unwed father challenged an Illinois statute which resulted in his classification as an unfit father and the removal of his children from their home after the death of the mother because he had not been married to the children’s mother. The State argued it was unnecessary to hold individualized hearings to determine the fitness of unwed fathers before those fathers were separated from their children because unmarried fathers were “per se” unfit.
The Supreme Court disagreed and ruled in accordance with the Due Process Clause that Stanley was entitled to a fitness hearing *94before his children were taken from him. 405 U.S. at 649. The Court specifically addressed the argument that individualized hearings for unmarried fathers would create an administrative inconvenience and noted that although the State has an interest in prompt procedures, “the Constitution recognizes higher values than speed and efficiency.” 405 U.S. at 656.
Thus, even though K.S.A. 38-1114(f) may provide a quick and clear method to dismiss paternity actions, it must comport with the values inherent in the Constitution, namely due process of law.
The Court in Stanley pointed out that prompt procedures are not the only consideration important to citizens:
“Procedure by presumption is always cheaper and easier than individualized determination. But when, as here, the procedure forecloses the determinative issues of competence and care, when it explicitly disdains present realities in deference to past formalities, it needlessly risks running roughshod over the important interests of both parent and child. It therefore cannot stand.” 405 U.S. at 656-57.
Kansas law provides a presumption that sperm donors are not the legal parents of any children conceived of the donated sperm, absent a written agreement. In the case of a known sperm donor and an unmarried woman, however, the donor should be allowed the opportunity for a hearing to establish his intent to be something other than a sperm “donor”—i.e., to establish his paternity and rights as a parent. Simply stated, I would find the statute’s clarity does not justify its constitutional violation.
The requirement of a “writing” under K.S.A. 38-1114(f)
It is interesting to note that in considering whether the K.S.A. 38-1114(f) writing requirement may be met by considering S.H.’s averments in her pleadings, the majority references Lewis Carroll’s “looking glass.” 285 Kan. at 81. (“[Ijnterpreting [pleadings] separately or together to prove the parties ‘agreed’ to D.H.’s status as a father would require Lewis Carroll’s looking glass.”). While I agree with the majority that we cannot interpret the pleadings filed by S.H. (in which she referred to D.H. as the “father” of her children at least 56 times) as the “writing” contemplated by K.S.A. 38-1114(f), I would find that S.H.’s inconsistent pleadings and actions are evidence to be considered by the district court in determining *95whether the parties agreed that D.H. would play an active role in the twins’ lives.
S.H. filed a child in need of care (CINC) petition the day following the twins’ birth seeking to terminate D.H.’s parental rights. In the petition, she alleged several reasons for terminating D.H.’s parental rights, including D.H.’s failure to provide prenatal emotional and financial support, which implied she intended D.H. to play a role in the parenting process. Significantly, no mention was made in the CINC petition of K.S.A. 38-1114(f) or its potential application here. In fact, it was not until petitioner filed an amended petition more than 2 weeks after the initial petition that mention was made of K.S.A. 38-1114(f) and its presumption of nonpaternity.
Thus, I would remand for the district court to consider all evidence relevant to the existence of an agreement between the parties, including S.H.’s inconsistent allegations regarding D.H.’s responsibilities, her consistent reference to D.H. as the “father” of her children, and her failure to rely upon the statutory presumption in her initial petition.
As a final note, I agree that this court should not place fathers in an “Alice and Wonderland” scenario where the rules of the “chess game” are constantly changing and Kansas children are sometimes left without two supportive parents. And yet, it seems to me that rather than Lewis Carroll’s looking glass, we are looking at this case through a “funny mirror” at the local carnival. It is apparent that D.H. seeks to be a loving and supportive parent to the two children he has biologically fathered—two children who have no other putative father. And yet, by operation of a statute of which D.H. was unaware, his rights to parent these children were cut off before the children were conceived with the use of his sperm. This is a result we should not abide for D.H. or for his children absent the protections of due process.
Conclusion
I would hold K.S.A. 38-1114(f) unconstitutional as applied to D.H. as it takes away his fundamental rights to parent his children without due process of law. Further, I would remand this case with *96directions to the district court to resolve the factual dispute recognized by the majority here—i.e., whether D.H. and S.H. agreed that D.H. would be the natural father of K.C.H. and K.M.H. If the court concludes that such an agreement existed, then it must hold that K.S.A. 38-1114(f) did not apply to extinguish D.H.’s rights and must proceed to determine paternity and the extent to which D.H. will be permitted to share the rights and responsibilities of parenting his two children.
Hill, J., dissenting: I must respectfully join with Judge Caplinger in her dissent. I too agree that as applied in this case, K.S.A. 38-1114(f) is unconstitutional when applied to a known donor.
But I raise my hand and ask a different question. Who speaks for the children in these proceedings? As applied by the majority in this case, this generative statute of frauds slices away half of their heritage. A man who was once considered a “putative father” in the initial child in need of care proceeding is now branded a mere “semen donor.” The majority offers the children sympathy. But is this in their best interests? The trial court never got to the point of deciding the best interests of the children because it was convinced that such a consideration was barred by the operation of K.S.A. 38-1114(f) to a known donor.
None of the elaborate and meticulous safeguards our Kansas laws afford parents and children in proceedings before our courts when confronted with questions of parentage have been extended to these children. A quick glance over our procedures dealing with the Kansas Parentage Act (K.S.A. 38-1110 et seq.) or our Code for Care of Children (K.S.A. 38-1501 et seq.) reveals the great caution we taire in this state when courts must consider such relationships. While it is true that an attorney was appointed to represent the children in the original child in need of care case, the record from their point of view remains silent. Instead only the voices of mother and “semen donor” are heard in district court and this court as well.
I agree with the Ohio Court of Common Pleas when it said:
“A father’s voluntary assumption of fiscal responsibility for his child should be endorsed as a socially responsible action. A statute which absolutely extinguishes *97a father’s efforts to assert the rights and responsibility of being a father, in a case with such facts as those sub judice, runs contrary to due process safeguards. [Citation omitted.]” C.O. v. W.S., 64 Ohio Misc. 2d 9, 12, 639 N.E.2d 523 (1994) (citing Lehr v. Robertson, 463 U.S. 248, 77 L. Ed. 2d 614, 103 S. Ct. 2985 [1983]).
I think the same can be said about our statute.