By Leslie Ellen Shear, J.D., CFLS
Today the California Court of Appeal held that the intended
parents are the legal parents of a child of donor gestational
surrogacy, despite the intended father's efforts to avoid parental
responsibilities. The case is In
re Marriage of John A. B. and Luanne H. B. (G022147,
G022157) and can be downloaded for the
full opinion.
I wrote a friend of the Court brief for the California Association of Certified Family Law Specialists on behalf of the child in this case. California's Fourth District Court of Appeal (Division 3) adopted many of the arguments which I advanced on behalf of ACFLS. Jaycee's conception utilized donor sperm and donor ovum, implanted in a surrogate. A written surrogacy contract was signed AFTER the implantation.
Before Jaycee's birth, the intended father left his marriage and filed a dissolution proceeding in which he claimed there were no children of his marriage.
Ultimately an Orange County trial judge held that Jaycee had no legal parents, that John had no duty of support, and that Luanne would have to adopt Jaycee.
The Court of Appeal reversed today, holding:
1. "Just as a husband is deemed to be the lawful father of a child unrelated to him when his wife gives birth after artificial insemination, so should a husband and wife be deemed the lawful parent of a child after a surrogate bears a biologically unrelated child on their behalf."
2."... in this case -- unlike artificial insemination -- there is no reason to distinguish between husband and wife."
3. The Uniform Parentage Act's language does not limit establishment of maternity to birth or genetics, it merely allows the use of those two methods.
4. Donor gestational surrogacy and artificial insemination are directly analogous. "Both contemplate the procreation of a child by the consent to a medical procedure of someone who intends to raise the child but who otherwise does not have any biological tie."
5. Absent written consent, full knowledge of the facts and willing participation is enough.
6. Common law estoppel applies to prevent John from consenting to an act which brings a child into existence and then turning around and disclaiming any responsibility.
7. Where two women are possible legal mothers "intent" breaks the tie.
8. "There is a difference between a court's enforcing a surrogacy agreement and making a legal determination based upon the intent expressed in a surrogacy agreement. By the same token, there is also an important distincton between enforcing a surrogacy contract and making a legal determination based on the fact that the contract itself sets in motion a medical procedure which results in the birth of a child ... In the case before us, we are not concerned, as John would have us believe, with a question of the enforceability of the oral and written surrogacy contracts into which he entered with Luanne. This case is not about "transferring" parenthood pursuant to those agreements. We are, rather, concerned with the consequences of those agreements as acts which caused the birth of a child.
9. The Court rejected the adoption paradigm for children of ART in which the intended parents have no biological relationship with the child, holding that children are protected by the dependency system rather than the adoption system in the event that they are not well cared for by the intended parents. "The adoption default model is essentially an exercise in circular reasoning, because it assumes the idea it seeks to prove; namely that a child who is born as the result of artificial reproduction is somebody else's child from the beginning.
10. The adoption paradigm is inconsistent with the public policy of California, which stresses the compelling state interest in establishing a child's parentage and sources of support. "It would be lunatic for the Legislature to declare that establishing paternity is a compelling state interest yet conclude that establishing maternity is not."
11. The holding in Johnson v. Calvert applies to any situation where a child would not have been born "but for the efforts of the intended parents."
12. Even if Luanne had promised to assume all responsibility for Jaycee's care, she could not legally waive Jaycee's right to support from John. A parent cannot waive or abrogate the child's support rights. Conclusion: "... a deliberate procreator is as responsible As a casual inseminator."
March 1998
Copyright 1998. The American Surrogacy Center, Inc.(TASC), Marietta, GA
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