Fourth DCA Civ. No. G0022157/GO022147
COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOR THE FOURTH APPELLATE DISTRICT
DIVISION THREE
In the Marriage of
JOHN A. B.
Petitioner,
vs.
LUANNE H. B.
Respondent.
Fourth DCA Civ. G022157Consolidated with
Fourth DCA Civ. G022147
OCSC Case No. 95D002992
AMICUS CURIAE
ASSOCIATION OF CERTIFIED FAMILY LAW SPECIALISTS
OPENING BRIEF IN SUPPORT OF
APPELLANT/PETITIONER JAYCEE B.
On Appeal From Trial Court Ruling Re:
Judgment on Reserved Issues,
of the Superior Court of California
for the County of Orange
The Honorable Judge Robert D. Monarch, Presiding
Leslie Ellen Shear, CFLS (The State Bar of California Board of Legal Specialization)
State Bar No. 72623
16830 Ventura Boulevard, Suite 351
Encino, California 91436
Attorney for Amicus Curiae
Association of Certified Family Law Specialists
CONTENTS
COMBINED STATEMENT OF FACTS AND STATEMENT OF THE CASE 1
"Sometimes I Feel Like a Motherless Child"
INTRODUCTION 3
Not "Child of No One" But "Somebody's Baby"
ARGUMENT PART ONE: 7
Parentage Issues Arising from Forms of Collaborative Reproduction
Should Be Resolved Under a Child-Centric "Needs-Based Rights" Analysis
A. Parentage Law Must Be Premised Upon the Primacy of
the Child's Need for Care Rather Than Adult Entitlements 8
B. Reproductive Method Should Not Determine Parentage 10
C. Parentage Law Should Enable Children to Form Secure, Dependable
Attachments by Recognizing the Presumptive Parents Before Birth 11
D. Parentage Law Must Enforce Pre-Conception Commitments 14
E. Parentage Law Must Require That Pre-Conception Assumptions
of Parental Status and Responsibilities Are Unconditional 15
F. Parentage Law Must Continue to Protect Donors of Genetic Material and
Gestational Surrogates from the Risk of Unanticipated Parental Responsibilities
17
G. The Presumption of Parentage in Favor of the Intended Parents Should Not Be
Easily Rebutted and the Issue Must Be Raised Before or At the Time of Birth 17
PART TWO 18
California Parentage Law in Context: Biology and Beyond
A. Bastards and the Presumption of Legitimacy 20
B. Paternity Actions: Establishing Support Rights for Illegitimate Children 21
C. Biological Paternity: The Uniform Act on Blood Tests 22
D. Donor Artificial Insemination: The First Form of Collaborative Reproduction 22
E. Abolishing Illegitimacy: The Uniform Parentage Act 26
F. Newest Statutes: Registering Paternity; Establishing Parentage in D.V.P.A. Cases
27
G. Parentage by Equitable Estoppel 28
H. Common Policy Threads Across Diverse Bodies of Parentage Law 28
PART THREE: 31
Applying The Policies Under Existing Law
A. Jaycee's Fundamental Interest in Recognition of Her Parents
Is Protected By the U.S. and California Constitutions 31
B. The Adoption Paradigm Serves No Public Policy Goals
in the Context of Collaborative Reproduction 32
C. John and Luanne Are Jaycee's Parents Under
California's Common Law Definition of "Parent" 36
D. Jaycee Is a "Child of the Marriage" of John and Luanne 37
E. Failure to Treat Jaycee Identically to Children of Artificial Insemination,
Ovum Donation and Gestational Surrogacy Violates Equal Protection 39
F. John Is Equitably Estopped from Denying Parental Responsibility 43
"Only the Chancellor Can Protect the Innocent and Render Justice"
G. Family Code §7614 Provides an Independent Basis for Child Support 47
CONCLUSION 48
"How Toys (and Families) Become Real"
TABLE OF AUTHORITIES
CASES
Alexandria S. v. Pacific Fertility Medical Center, Inc. (1997)
55 Cal.App.4th 110, 119, 4 Cal. Rptr.2d 23 27
Allen v. Hance (1911) 161 Cal. 189, 196, 118 P. 527 44
American Academy of Pediatrics v. Lungren (August 5, 1997)
97 Daily Journal D.A.R. 10141 31
Clevenger v. Clevenger (1961) 189 Cal.App.2d 658, 11 Cal.Rptr. 707 28, 46
Comino v. Kelly (1994) 25 Cal.App.4th 678, 30 Cal.Rptr.2d 728 21
County of Orange v. Leslie (1993) 14 Cal.App.4th 976, 17 Cal.Rptr. 748 21
Eisenstadt v. Baird (1972) 405 U.S. 438 36
Estate of Hafner (1986) 184 Cal.App.3d 1371, 1394, 229 Cal.Rptr. 676 45
Gomez v. Perez (1973) 409 U.S. 535, 93 S.Ct. 872 26, 31
Griswold v. Connecticut (1965) 381 U.S. 479 36
Jaycee B. v. Superior Court (1996) 42 Cal.App.4th 720 3, 33
Johnson v. Calvert (1993) 5 Cal.4th 84, 94-95,
19 Cal.Rptr.2d 494, 851 P.2d 776 11, 12, 31, 32, 33, 34, 39
In re Marriage of Johnson (1979) 88 Cal.App.3d 848, 152 Cal.Rptr. 121 28, 45
Jhordan C. v. Mary K. (1986) 179 Cal.App.3d 386, 224 Cal.Rptr. 530 26
In re K. (Tex. 1976) 535 S.W.2d 168 12
Kusior v. Silver (1960) 54 Cal.2d 603, 7 Cal.Rptr.129 20
Lane v. Lane (N.M. App. 1996) 121 N.M. 414, 912 P.2d 290,
cert. denied, 121 N.M. 375, 911 P.2d 883 41
Los Angeles Dep't of Water and Power v. Manhart (1978) 435 U.S. 702 40
May v. Anderson (1953) 345 U.S. 528 36
Meyer v. Nebraska (1923) 262 U.S. 390 35
Michael H. v. Gerald D. (1989) 491 U.S. 110 20
Miller v. Albright (1997) 117 S.Ct. 1689 (Mem), 137 L.Ed.2d 817 26
Marriage of Moschetta (1994) 25 Cal.App.4th 1218, 30 Cal.Rptr.2d 893 17, 32, 34
Nancy S. v. Michele G. (1981) 228 Cal.App.3d 831, 279 Cal.Rptr. 212 38
Police Dept. v. Mosely (1972) 408 U.S. 92 40
Roe v. Wade (1973) 410 U.S. 113 36
Skinner v. Oklahoma (1942) 31 U.S. 535 35
People v. Sorenson (1968) 68 Cal.2d. 280, 284 14, 24, 25, 28, 29, 36, 37
United States v. Virginia (1996) 116 S.Ct. 2264 40
In re Marriage of Valle (1975) 53 Cal.App.3d 837, 126 Cal.Rptr. 38 28, 46
Weber v. Aetna Casualty & Surety Company (1972) 406 U.S. 164, 92 S.Ct. 1400 26, 31
Estate of Woodward (1964) 230 Cal.App.2d 113, 40 Cal.Rptr. 781 22
STATUTES AND UNIFORM ACTS
California Evidence Code §623 43
California Family Code §7540 20, 38
California Family Code §7550 et. seq. 22
California Family Code §7570-7577 28, 30
California Family Code §7570(a) 30
California Family Code §7610(a) 39
California Family Code §7611 26
California Family Code §7613 5, 27, 39, 40, 41
California Family Code §7614 5, 47, 48
California Family Code §8616 35
California Family Code §8617 35
California Penal Code §270 21, 24, 37
California SB 564 (Ch. 39, Stats. 1997) 28
California Uniform Parentage Act, 9B U.L.A. 288-289 19, 20, 26, 27, 29, 31, 32, 38, 41
California Uniform Status of Children of Assisted Conception Act.
9B U.L.A. 195 (Supp. 1997) 27, 41, 42, 43, 50
LAW REVIEWS AND ARTICLES
Elizabeth Bartholet, Beyond Biology: The Politics of Adoption & Reproduction (1995) 2 Duke J. Gender L. & Pol'y 5 34
John Lawrence Hill, What Does it Mean to Be a "Parent:? The Claims of Biology as the Basis for Parental Rights (1991) 66 N.Y.U. L. Rev. 353 1, 12
Wolfgang Hirczy, Protecting the Father-Child Bond Against Non-Paternity Action: Legislative, Judicial and Constitutional Approaches, www.legal.net 10, 20
John L. Mandler, Developing a Concept of the Modern "Family": A Proposed Uniform Surrogate Parenting Act (1985) 73 Geo. L.J.1283 16
Judith Lynn Bick Rice, The Need for Statutes Regulating Artificial Insemination by Donors (1985) 46 Ohio St. L.J. 1055 15
Glen H. Schwartz, Fathers In Law, Los Angeles Lawyer Vol.20, No. 5, page 38 (July-August, 1997) 31
Marjorie Maguire Shultz, Reproductive Technology and Intent-Based Parenthood: An Opportunity for Gender-Neutrality (1990) Wis. L. Rev. 297 14, 33
Andrea E. Stumpf, Redefining Mother: A Legal Matrix for New Reproductive Technologies (1986) 96 Yale L.J. 187 11
Barbara Bennett Woodhouse, Hatching the Egg: A Child-Centered
Perspective on Parents' Rights, 14 Cardozo L. Rev. 1747 9
Barbara Bennett Woodhouse, "Out of Children's Needs, Children's Rights":
The Child's Voice in Defining the Family (1994) 8 BYU J. Pub. L. 321 7, 10, 49
TREATISES AND OTHER SOURCES
Bruno Bettleheim, The Good Enough Parent (Vintage:1988) 8
Janet Dolgin, Defining the Family: Law, Technology and Reproduction in an Uneasy Age (New York University Press: 1997) 24
Frank Furstenberg, Jr. and Andrew J. Cherlin, Divided Families: What Happens to Children When Parents Part (1991: Harvard University Press) 6
Melissa Ludke, On Our Own: Unmarried Motherhood in America
(Random House:1997) 18
U.S. Department of Health and Human Services, National Institute for Child Support Enforcement, Paternity Establishment (3rd Edition: 1990) 25
Carmel Shalev, Birth Power: The Case for Surrogacy
(1989: Yale University Press) 20, 21, 23, 29
Margery Williams, The Velveteen Rabbit or How Toys Become Real 49
COMBINED STATEMENT OF FACTS AND STATEMENT OF THE CASE
"Sometimes I Feel Like a Motherless Child"
Jaycee B., a two-and-one-half-year-old Orange County toddler, asks this Court to find that the man and woman who intentionally brought about her birth are her parents. Jaycee is not genetically related to either of her intended parents, or to the woman who nurtured her before birth. Jaycee's birth resulted from the decision of a married couple to have a child through donor gestational surrogacy(1). Jaycee has lived with Luanne B., her intended mother, since birth. Luanne contends that Jaycee is a child of her marriage to John B. John asserts that he has no legal relationship to Jaycee and no parental responsibilities toward her.
During their marriage John and Luanne wished to become parents. Infertility led them to consult with various professionals about how they could have a baby. They chose donor gestational surrogacy. Working through an agency, they arranged to obtain donated genetic material (sperm and ova) and located a woman, Pamela S., willing to serve as a gestational surrogate. John, Luanne, Pamela and her husband, Randy S., entered into a written surrogacy contract. Sperm and eggs from anonymous donors would be used to create a pre-embryo for implantation in Pamela. John and Luanne would assume complete parental responsibility for the child from birth. Neither the donors nor the S.'s would have any parental rights or responsibilities following the child's birth. John and Luanne undertook to contribute to Pamela's support ($500 per month) during the pregnancy. Pamela agreed to obtain appropriate medical care, and to abstain from drug use or other conduct that might jeopardize the unborn child.
John left the marriage one month prior to the birth of Jaycee. His Petition(2) alleged that there were no children of the marriage. Luanne's Response checked box "b." ("The minor children are:") and stated: "Parties are expecting a child by way of a surrogate contract. The surrogate estimates the expected date of birth will be 4/20/95. The doctor indicates a date of birth will be approximately 05/05/95. A copy of the Surrogate Agreement is attached hereto as Exhibit "A"." Box c. (1.) was also checked and annotated, "Birth of child expected within 3 weeks."
Jaycee was born and came home from the hospital with Luanne. In all respects, Luanne has been as Jaycee's de facto parent since birth. John has opted to have no contact with Jaycee. The court appointed counsel for Jaycee.
When Jaycee was four months old, Luanne brought an Order to Show Cause(3) seeking, inter alia, custody of Jaycee, maintenance of Jaycee as a dependent on John's health insurance coverage, "determination of parentage," "Amending birth certificate," and child support. John asserted that the Court had no jurisdiction to make any orders with respect to Jaycee.
Luanne's request for pendente lite orders was denied. This Court reversed in a published opinion, Jaycee B. v. Superior Court (1996) 42 Cal.App.4th 720 (Jaycee I.). The trial court (Writ Petition Exhibit A) designated Luanne as Jaycee's "temporary custodial person," and ordered John to pay temporary child support of $386 per month and one half of child care expenses actually incurred. The Court ordered Pamela joined as a party.(4)
At trial there were no contested facts. The trial court found that Jaycee is not a child of the marriage, concluding that it lacked jurisdiction to make awards of custody and child support. It declined to apply the doctrine of equitable estoppel to compel John to assume child support responsibilities. This Court stayed the trial court's orders, compelled the continued payment of child support, and awarded Luanne temporary custody of Jaycee.
INTRODUCTION
Not "Child of No One" But "Somebody's Baby"
ACFLS sought amicus curiae status in this case both out of a sense that the trial court decision was unjust, and because the facts of this case provide an opportunity for this Court to articulate a coherent scheme, within the framework of existing law, which will give a measure of certainty and stability to persons utilizing forms of collaborative reproduction(5). Continued case by case appellate adjudication of the issues presented by collaborative reproduction is damaging to children and families. Intended parents, donors and surrogates cannot be certain who will be the child's parents. Families whose finances have already been strained by the expenses of these procedures are further burdened with enormous legal bills. Most importantly children's lives cannot be placed on hold during the years of litigation. Detrimental disruption of a child's family life during the crucial first years is inevitable in the absence of a predictable legal framework. Finally, examining the issues on a case by case basis in the context of each form of collaborative reproduction is apt to produce inconsistent rulings.
This brief presents ACFLS's argument on behalf of Jaycee in three parts. Part One identifies child-centric principles and policies which should apply to all cases of collaborative reproduction. Part Two anchors those principles in the existing framework of parentage law by examining the history of California parentage law. Part Three applies the principles to the present case, using the existing parentage law. The policy goals and principles set forth below in Part One are derived from existing law and can be achieved without the need for legislation. In Part Three, the following arguments will be advanced applying the policies within the legal framework:
- The trial court's determination of Jaycee's status as "parentless" deprived her of her family privacy, substantive due process and equal protection rights under the California and United States Constitutions.
- The trial court erred in applying the adoption paradigm which serves no public policy goals in the context of collaborative reproduction.
- John and Luanne are Jaycee's parents under California's common law definition of parent.
- Jaycee is a "child of the marriage" of John and Luanne.
- Family Code §7613 violates Jaycee's rights to privacy, equal protection and substantive due process. The state does not have a compelling interest in differential treatment of children based upon the medical technology which was utilized to bring them into the world.
- John is estopped from denying his parentage of Jaycee.
- Independent of the provisions which purport to govern parentage, the surrogacy contract obligates John to support Jaycee under Family Code §7614.
Without creating new law, the trial court could have protected Jaycee. Her rights and interests should have been paramount. The court, in parentage actions, must conceive of itself as acting in parens patriae, rather than doing something analogous to resolution of contested rights to real property. Jaycee's personhood, and her needs, were not taken into account in the analysis. Rather, a set of rules was selected and mechanically applied without reference to its purpose.
Society's first responsibility is the protection of its children. All parentage law must be tested against that standard. The trial court failed to employ a child-centric standard or one which served any public policy goals in the context in which it was applied. The trial court erroneously adopted a post-natal paradigm (adoption) for a pre-natal question (recognition of birth parents(6)). In choosing between the adoption model and the parentage (collaborative reproduction) model, the trial court did not consider what public policies are furthered by each, and whether those purposes apply to the case before it. Failure to consider why the adoption model, rather than the artificial insemination model, should apply to Jaycee led the court to choose the wrong standard.
Of Jaycee's six possible parents, only one seeks legal recognition of her parentage. Another litigates to escape parental status. Luanne, the only putative mother has been denied the legal status necessary to fulfill the parental responsibilities she assumed at Jaycee's conception. John, the only putative father, has been permitted to escape the parental responsibilities he assumed at Jaycee's conception. Rather than confirming that the parent-child status existed between Jaycee and her parents from the moment of conception, the trial court employed a model under which Jaycee was born nobody's child, and will remain so unless, and until, someone adopts her. Neither the delay nor the additional expense and uncertainty associated with adoption procedures are in the best interests of children born through collaborative reproduction or their families.
The trial court excused John from all parental responsibility. John has no substantive right to freedom from parental responsibility for the child he knowingly created, no matter what method of conception and gestation were chosen. John is entitled to end his marriage to Luanne. However, he must honor the responsibilities he undertook during that marriage. His responsibility to Jaycee exists independently of his marriage to Luanne. In rejecting the child's mother, he cannot also reject the child.(7) John was permitted to exploit protections which were not intended for his benefit in order to avoid responsibility for the child he brought into the world. One cannot avoid parenthood on a "technicality" which bears no policy relationship to the purpose for which it is invoked. There is no public policy in favor of excusing people from support responsibilities when they engage in procreative conduct. Application of the wrong model produced an anomalous and unjust result which this Court must remedy.ARGUMENT PART ONE:
Parentage Issues Arising from Forms of Collaborative Reproduction
Should Be Resolved Under a Child-Centric "Needs-Based Rights" Analysis
The Court should employ a "needs-based rights"(8) analysis to cases of collaborative reproduction. Rules should be adopted which are most likely to promote the welfare of children. In balancing competing rights and interests in parentage litigation, those of children must be the Court's paramount consideration.
Such an analytical framework for recognition of parenthood in cases of collaborative reproduction would:
- recognize the primacy of the child's need-based rights over the rights of the adult parties;
- not differentiate between methodologies of assisted conception;
- enable children to form secure, dependable attachments by recognizing the presumptive parents before birth;
- ensure that prospective parents do not undertake collaborative reproduction lightly by enforcing pre-conception commitments to assume parental status and the ensuing responsibilities;
- require that pre-conception assumptions of parental status and responsibilities be unconditional;
- protect donors of genetic material, and gestational surrogates from the risk of unanticipated parental responsibilities;
- require prompt action at or prior to birth to rebut the presumption of parentage.
A. Parentage Law Must Be Premised Upon the Primacy of
the Child's Need for Care Rather Than Adult Entitlements
Society owes a higher standard of protection to the children than it does to the adult participants in the procreative process. Children do not exercise any choices in the events which lead to their birth, or as to their living arrangements after birth. Adults decide when, how and with whom they will act to bring a child into the world. Children are dependent upon the care of parents for their survival, and for most of their quality of life. The adult decision to engage in procreative conduct, sexual or otherwise, carries various risks which are known to the adults at the time of their actions. They, not the child, must assume those risks.
This Court must also determine the nature and extent of a child's right to family integrity. Human children depend upon their parents for almost the first twenty years of their lives. A child's right to the care and support of parents through legal recognition of her child-parent status is the most fundamental right she can possess. Laws operating deprive children of parents must serve compelling public interests.
In this century, family law considered the child's perspective through use of the best interests tests. Paradoxically, a best interests scheme for determining parentage requiring case by case comparison of relationships and parenting skills would not best protect children. Rather, it would encourage competitive litigation and positioning, and subject children to profound uncertainty during the critical early years of their development. The best interests test properly guides the creation and adaptation of child-centered parenting plans defining the roles of two legal parents with "good enough" parenting capacity(9). It has no place in the determination of parental status. The best interests test(10) cannot be imported from custody law into parentage law without an unreasonable intrusion of the state in the right of fit parents to raise their children as they see best. If parentage determinations were based upon best interests, every birth of a healthy child could occasion a competition of prospective claimants, with the court having to choose between them. The best interests test can also end up promoting fashions in child-rearing, the values of majority cultures, or the lifestyle of the more affluent party. Thus the traditional best interests test should not govern parentage disputes.
Parentage law requires a different way of framing the primacy of the child's needs-based rights to care, love and support over adult claims. Woodhouse proposes a perspective which affirms "the centrality of children to family and society, unambiguously defining parenting as the meeting of children's needs" as a "generist"(11) perspective,
A generist perspective views nurturing of the next generation as the touchstone of the family. This perspective views an adult's relationship with children as one of trusteeship rather than one of ownership. Adult "rights" of control and custody yield to the less adversarial notions of obligation to provide nurturing, authority to act on the child's behalf, and standing to participate in collaborative planning to meet the child's needs. A generist perspective involves taming the expression of adult power known as "rights talk" in order to redirect the discussion in terms of meeting children's needs.
Barbara Bennet Woodhouse, "Out of Children's Needs", supra. at 321.
Parentage law is the means by which society ensures that our children receive the care they need. Parentage doctrine must be child-centric, i.e. directed towards ensuring that children receive care. There needs to be a direct connection between the welfare of children and the criteria used to determine parentage. Where there is no such connection, rules violate the child's paramount rights.
B. Reproductive Method Should Not Determine Parentage
Parentage cannot turn on reproductive method. Children do not control the manner in which they are conceived and born. Their rights to parental care, love and support cannot be contingent upon reproductive methodology. The societal purpose for parental status is to ensure the care and welfare of children. Technical differences between various collaborative reproduction technologies are unrelated to the child's welfare. The means by which she was conceived make no difference to Jaycee.(12) A child's legal status (rights to care and support) cannot be contingent upon the means of conception and gestation. If society wishes to regulate adult conduct, it may not use the child's legal status as the means. Moreover, a method by method approach is unnecessary and impracticable. Science and society are changing at a rate faster than courts and legislatures can anticipate and respond. There is no need to tailor a different legal standard for parentage as each variant of collaborative reproduction appears on the scene. Rather, the principles which were first recognized in the context of artificial insemination should be built upon to establish principles which govern all cases of collaborative reproduction.
C. Parentage Law Should Enable Children to Form Secure, Dependable
Attachments by Recognizing the Presumptive Parents Before Birth
[A] rule recognizing the intending parents as the child's legal, natural parents should best promote certainty and stability for the child.
Johnson v. Calvert (1993) 5 Cal.4th 84, 94-95, 19 Cal.Rptr.2d 494, 851 P.2d 776.
Children are best protected by laws which make the identity and responsibility of their parents clear before their birth.(13) The intended parents should be presumed to be a child's parents in cases of collaborative reproduction. Such a presumption enables intended parents to prepare to welcome a child into their family, free of anxieties about whether their parentage will be challenged. It enables infants and their families to begin forming secure, reliable, loving and unconditional attachments from the moment of birth,(14) if not before. It protects children from the risk of being removed from the only parents they have ever known, or from conditional placements during litigation.
Having departed from biology as the exclusive model of parenthood, the law substitutes intent for sexual activity as a key to probable parental responsibility. Intent replaces "genetic bonding"(15) as an indicia of potential psychological attachment to the child. A profound longing for parenthood leads people to undertake collaborative reproduction. The intensity of that desire is apt to motivate most intended parents to act protectively towards the children they bring into the world. One court has termed a child conceived through sexual intercourse as the "biological consequence of erotic ecstasy on a summer night." In re K. (Tex. 1976) 535 S.W.2d 168. Surely parental intent will be as great a safeguard of the child's welfare as lust.
In Johnson v. Calvert, our Supreme Court relied heavily upon Shultz's argument in favor of intent-based parentage,
At the outset, any suggestion that honoring adults' commitments regarding parenthood is antithetical to the interests of children seems wrongheaded. [fn. omitted] Adults who feel that their needs, concerns and choices have been respected, adults who feel that they are resourceful and efficacious, will likely cope better with the demands of parenthood than parents who are passive or powerless. [fn. omitted] Moreover, deliberative, articulated and acted-upon intentions regarding child rearing have great importance as indices of desirable parenting behavior. There is a correlation between choosing something and being motivated to do it consistently and well. [fn. omitted] Where the birth of children is not intended, as is sometimes the case with ordinary coital reproduction, biological connection will not guarantee love or adequate care. [fn. omitted] By contrast, where children are conceived and born because their parents chose to bring them into being, we at least know that if the law honors those intentions, the children will start life with parents who wanted and prepared for their advent. Of course, intentions can change; plans and promises can be broken. But then, neither biology nor conventional families ever guaranteed permanent or perfect parenting either. [fn. omitted]
As with biological ties, conventional family forms per se offer no guarantee of good parenting. If they did, the realities of current family constellations in America would already have condemned huge percentages of our children to bad parenting [fn. omitted] wholly apart from artificial reproductive techniques. Family forms have greatly diversified due to divorce, blended families, single parenting, homosexual commitments and unmarried cohabitation. Many children are now raised in non-conventional settings. Evidence from these sources seems to suggest that familial arrangements based on non-biological ties can be very good settings for children, as long as they provide the physical and emotional nurturance that are the real essentials of healthy child development. [fn. omitted]
If society were to recognize intention as a basis for claiming parenthood in circumstances of artificial reproductive techniques, intention-based variations in family form would likely be better tolerated and less problematic. Legal recognition itself would alleviate some sources of instability and stigma.Conventional couples would make greater use of non-conventional techniques, particularly third-party assisted techniques, if they felt more certainty about protection of their expectations and reliance. Similarly, non-conventional family arrangements would likely increase unless barred by regulation.
Marjorie Maguire Shultz, Reproductive Technology and Intent-Based Parenthood: An Opportunity for Gender-Neutrality (1990) Wis. L. Rev. 297, 343
D. Parentage Law Must Enforce Pre-Conception Commitments
One who consents to the procreation of a child cannot create a temporary relation to be assumed and disclaimed at will, but the arrangement must be of such character as to impose an obligation of supporting those for whose existence he is directly responsible. As noted by the trial court, it is safe to assume that without defendant's active participation and consent the child would not have been procreated.
People v. Sorenson (1968) 68 Cal.2d. 280, 284.
Procreative responsibility is a necessary concomitant of procreative liberty. Children and society are not well served if persons like John can cause a child to be conceived and thereafter change their minds about parenthood. This Court must determine what responsibilities men and women assume when they take action(16) which causes the birth of a child. John and Luanne took deliberate action during their marriage to bring about Jaycee's conception and birth. They assumed moral and legal responsibility for Jaycee's care and support. They are directly responsible for her existence.
Procreative conduct must carry inherent responsibilities. We take that principle for granted when people engage in sexual intercourse, even if they utilize birth control and have no procreative intent. We must hold those who deliberately create human life to at least the same standard as casual inseminators. Procreative responsibilities cannot depend upon the particular type of reproductive conduct. There is no child-related difference between a husband's consent to his wife's use of artificial insemination and John's consent to donor gestational surrogacy. Each carries a fiduciary duty to the life which, but for the deliberate choice of an adult, would not have been created. If the law allows persons engaging in collaborative reproduction to disavow responsibility for the child, it invites people to casually enter into such arrangements. Parenthood, no matter how brought about, should not be taken lightly.
E. Parentage Law Must Require That Pre-Conception Assumptions
of Parental Status and Responsibilities Are Unconditional
Along with the benefits, collaborative reproduction carries inherent risks, including the birth of children who do not meet the expectations of the intending parents. Parentage law must ensure that adults, not children, bear the consequences of those risks.
The natural family cannot control all of the forces which influence the health of the fetus. Families employing collaborative reproduction should not enjoy greater protection. Pregnancy carries with it the risk of birth defects. Conduct during pregnancy can increase those risks. Nonetheless, intended parents should not have the option of rejecting the child either based upon the child's condition or characteristics, or on the basis that the gestational mother breached her obligation to take all reasonable steps to promote the health of the fetus.
Intended parents should not be permitted to condition their assumption of parental responsibility. The result could be abandoned special needs children who become wards of the state, or for whom adoptive parents must be found. Birth defects and fetal alcohol syndrome in children born to surrogates have raised questions about parental responsibilities for imperfect offspring.(17) Consent to collaborative reproduction entails accepting responsibility for the life which is created even if one's expectations are not fulfilled.
Parenthood begins conception. Parenthood is not a contingent status. Intervening acts of adults or of nature should not affect the presumed parents' primary responsibility to the child. Intending parents have an opportunity to screen prospective donors and surrogates. Despite the gestational mother's liberty interest in controlling her own body, intending parents should not be able to condition acceptance of the child upon any criteria. Human life is not a factory product. Non-conforming goods cannot be returned to the manufacturer or replaced. The intending parents enter into a fiduciary relationship to the child independent of the gestational mother's conduct. Fathers whose children are conceived and born "the old fashioned way" bear the same risk. Fathers are unable to control the conduct of mothers during pregnancy, and yet they are not excused from responsibility for drug babies or children with preventable birth defects. Nongestational parenthood encompasses all risks of prenatal or birth injury.
Here the changed circumstances which produced John's change of heart was the end of his marriage to Luanne. Sadly, many marriages end during pregnancy. There is no reason why divorce alters John's responsibility to Jaycee.
F. Parentage Law Must Continue to Protect Donors of Genetic Material and Gestational Surrogates from the Risk of Unanticipated Parental Responsibilities
Artificial insemination law insulates sperm donors from parental responsibilities if statutory formalities are followed and the insemination takes place with medical supervision. The underlying policy is to encourage the availability of donated genetic material for use by other persons in the exercise of their procreative liberty. The existing protections should be expanded to include all donors of genetic material, as well as surrogates.
G. The Presumption of Parentage in Favor of the Intended Parents Should Not Be Easily Rebutted and the Issue Must Be Raised Before or At the Time of Birth
The purposes of a presumption in favor of intended parents are to enable all of the adults to rely upon the expected outcome, and to ensure that the child is not placed in limbo (and therefore at risk) while adults litigate. Those goals cannot be met unless the window of time in which the issue can be raised is extremely narrow, and the burden to rebut the presumption extremely high.
The presumption should only be rebutted in the following circumstances:
- by a gestational mother who is also the child's genetic mother [Marriage of Moschetta (1994) 25 Cal.App.4th 1218, 30 Cal.Rptr.2d 893];
- by the child or by a genetic or gestational parent upon clear and convincing evidence that recognition of the intended parents as parents would be detrimental to the child.
In Moschetta, ibid., this Court found that traditional surrogacy (in which the gestational mother is also the genetic mother) is more akin to adoption than to collaborative reproduction. The Court found that the same considerations which preclude prenatal binding relinquishments of children for adoption exist when the surrogate carries her own biological child. The rights of a genetic/gestational mother override all other interests, despite her pre-conception decision that she would not enjoy any parental rights.
Such claims must be resolved at or before birth with great alacrity. Traditional surrogates should not be able to raise the issue once the child has become established in the home of the intended parents. The child must be protected from extended uncertainty about parentage, and from disruption of her normal development and bonding process.
Apart from the maternity claims of traditional surrogates, the presumption in favor of the intended parent should only be rebutted upon a showing of detriment to the child. Any lesser standard would elevate the right of an adult to change his mind over the child's need for stability and continuity of care. This high burden, analogous to that in guardianship proceedings, will protect children and deter litigation.PART TWO
California Parentage Law in Context: Biology and Beyond
Parentage law is a patchwork quilt to which many of the squares have yet to be sewn. The issues in this case can only be understood in the context of a historical and policy-based understanding of parentage law. Parentage law began with the concept of bastardy(18). Centuries later it has come full circle. The trial court used the technological novelty of Jaycee's conception and gestation to create a new type of illegitimacy. It found that Jaycee is nobody's child.
Parentage law resolves disputes about the existence and recognition of existing parent and child relationships. The status of parent and child exists and may be legally recognized from the moment of conception. Parent and child relationships are not created by courts. By contrast to parentage law, adoption law involves the termination of an existing parent-child relationship and the substitution of a new one.
California parentage law is a pastiche of statutes and precedent, developed at different times and furthering different social policies. The independent origins and character of these parentage statutes have been disguised by their incorporation into the Family Code. They do not comprehensively and exclusively resolve all issues of parentage.
California's common law, as well as the Family Law Act itself, remain equally valid doctrinal bases for the determination of issues of parentage not resolved by specific statutes. Long before adoption of any statutory scheme, courts resolved parentage issues. Where the statutes fail to apply, the common law continues to evolve. The decisional authority fills the gaps between statutes, as well as interpreting them in an effort to weave a coherent whole which embodies public policy goals.
Jaycee's parentage cannot be determined within the confines of any California statute, unless such statute is extended because her exclusion would violate substantive due process and equal protection rights. Thus the Court must turn to the common law of parentage, and interpret it in a fashion which is consistent with Constitutional principles, sound public policy, each of the statutory schemes, and existing precedent.
Solomon notwithstanding, until the advent of in vitro fertilization, parentage law has been paternity law. With the rare exception of newborns switched at birth, maternity has been clear. Other than a passing reference in the Uniform Parentage Act, the law of maternity was not addressed before disputes concerning the children of surrogacy arose. Until the development of blood and tissue typing (of ever-increasing precision), it was not possible to identify a given child's father with certainty. Parentage law attempted to compensate for that uncertainty, and then, after scientific advances, to balance the notion that biology is destiny with social definitions of fatherhood. While parentage law often refers to the paradigm of natural parenthood, genetic and gestational ties have never been essential to a finding of legal parenthood.
A. Bastards and the Presumption of Legitimacy
Paternity litigation dealt, first, with the status of legitimacy. Family Code §7540, the conclusive marital presumption (formerly the presumption of legitimacy), codifies Lord Mansfield's Rule, the oldest parentage law doctrine.(19) The presumption of legitimacy has a long history during centuries in which there was no scientific method for determining biological paternity. [See Wolfgang Hirczy, Protecting the Father-Child Bond Against Non-Paternity Action: Legislative, Judicial and Constitutional Approaches, supra.; Carmel Shalev, Birth Power: The Case for Surrogacy (Yale University Press: 1989) at 76; Michael H. v. Gerald D. (1989) 491 U.S. 110]. After the advent of blood tests, courts recognized that the presumption continued to serve an important social function, i.e. promoting legitimacy and family integrity. In Kusior v. Silver (1960) 54 Cal.2d 603, 7 Cal.Rptr.129, the California Supreme Court transformed it from an evidentiary presumption to a substantive rule of law.
Subsequent legislative amendments and appellate decisions created a two-year window in which the presumption could be rebutted. The policy rationale shifted from preventing illegitimacy (a status which no longer existed after the Uniform Parentage Act) to protecting parent and child relationships functioning within a marital family. Although Family Code §7540 is a "conclusive" presumption, the courts have found it unconstitutional when applied in certain settings in which the underlying social policies are not served. [See Justice Brennan's plurality opinion in Michael H. v. Gerald D. (1989) supra. at 136, County of Orange v. Leslie (1993) 14 Cal.App.4th 976, 17 Cal.Rptr. 748, and Comino v. Kelly (1994) 25 Cal. App. 4th 678, 30 Cal.Rptr.2d 728.]
Thus the earliest parentage law was concerned with affording the child the protection of the marital family, even if the child was not biologically related to the father. That policy endures to this day.
B. Paternity Actions: Establishing Support Rights for Illegitimate Children
Where children could not be classified within the protection of the marital family, the two options were either adoption or paternity actions to establish support.
One response to the social problem of out-of-wedlock children in Western countries has been to demand that the father be held financially responsible for his child. This is accomplished by means of legal paternity proceedings. The bastardy action, as it was originally called in common law jurisdiction, was a statutory criminal action designed to remove the burden of supporting the child from local welfare authorities. The first such statute, enacted in England in 1576, was concerned with "bastards being now left to be kept as the charges of the parish where they be born, to the great burden of the same parish and to the evil example and encouragement of the lewd life." Its express purpose was "as well for the punishment of the mother and reputed father of such bastard child, as also for the better relief of every parish." The paternity action later came to be viewed as a civil proceeding, but in many U.S. jurisdictions it may still be brought by public welfare authorities.
Carmel Shalev, Birth Power, supra. at 32.
To the extent that society does not recognize individuals as responsible for Jaycee's care and support, that responsibility falls to the state, just as it did in 1576.
California adopted Penal Code §270 (criminalizing failure to support legitimate children) in 1872. In 1915 the duty of support recognized by the Penal Code was extended to illegitimate children. In 1925 the Code was amended again to declare that a child conceived but not yet born was an existing person so far as this section was concerned. Thus California law has recognized the status "parent and child" as existing and entailing support responsibilities from the moment of conception for more than 70 years. It took almost fifty years for California courts to expand the definition of "family" within the meaning of the Probate Code's family allowance provisions, to permit illegitimate children to receive a family allowance from the estate of their fathers. The Court of Appeal held:
Modern society shrinks from application of the Old Testament (Exodus 20) commandment 'visiting the iniquity of the fathers upon the children * * * ' Rather we accept the more humanitarian view stated by Judge Leon Yankwich, that 'there are no illegitimate children, only illegitimate parents'.
Estate of Woodward (1964) 230 Cal.App.2d 113,118, 40 Cal.Rptr. 781
C. Biological Paternity: The Uniform Act on Blood Tests
To ease the ability of courts to identify fathers for purposes of support, California enacted the Uniform Act on Blood Tests to Determine Paternity in 1952 [now found at Family Code §7550 et. seq. (Division 12, Chapter 2)]. Those sections were amended subsequently to keep pace with scientific advances in the form of HLA and DNA testing. The purpose of this Act was to identify the genetic father through blood tests, and to resolve the issue of paternity accordingly where the marital presumption did not apply. This Act was not intended as a comprehensive codification of the law of parentage, but merely a resolution of the admissibility and significance of blood tests.
D. Donor Artificial Insemination: The First Form of Collaborative Reproduction Artificial insemination was initially seen as a form of adultery.
Historically, the law's response to artificial insemination, a form of reproductive control that does not require sophisticated technology and that has been available for application to human reproduction for over a century,(20) provides an illuminating illustration of the process through which the law assimilates, and then comes consistently to regulate, unsettling changes in the possibilities for human reproduction. In the first half of the twentieth century, disputes occasioned by artificial insemination, especially when the procedure was accomplished using the sperm of a donor rather than the sperm of the husband of the woman to be inseminated, involved questions about the paternity of the donor and of the mother's husband. Courts, almost always relying on one or another familiar understanding of family matters, responded variously and usually with intensity. Some equated artificial insemination with adultery and defined the child as illegitimate. Others defined the relation between the mother's husband and the child produced from artificial insemination as one of semi-adoption or potential adoption. Others refused to entertain a divorcing mother's claim that her children were conceived through artificial insemination because that claim suggested the children should be defined as bastards. No legislation specifically guided courts in these cases until the mid-1960's. At about that time, family law was becoming generally responsive to changes in the family that suggested a new place for individualism and choice within families.
In 1964 Georgia enacted the first statute directly responsive to the questions raised by artificial insemination. The statute declared children born through artificial insemination using donor sperm to be the legitimate children of their mother's husbands. Within a short period of time, a majority of the states promulgated statutes that regulated artificial insemination and that provided for the legitimacy of the resulting children. By the 1970's social consensus had emerged.
Janet Dolgin, Defining the Family: Law, Technology and Reproduction
in an Uneasy Age (New York University Press: 1997) at 8-9.
California led the nation in formulating the modern analysis of collaborative reproduction. In 1968 California's Supreme Court held that intentional procreative conduct is a basis for recognition of parental responsibility. The case arose in the context of a criminal prosecution for non-support. The trial court defined father to include parentage of a child like Jaycee, with no genetic links to the father, who was conceived with the father's consent.
The law is that defendant is the lawful father of the child born to his wife, which child was conceived by artificial insemination to which he consented, and his conduct carries with it an obligation of support within the meaning of section 270 of the Penal Code.
Under the facts of this case, the term "father" cannot be limited to the biologic or natural father as those terms are generally understood. The determinative factor is whether the legal relationship of father and child exists as those terms are commonly used. A child conceived through heterologous artificial insemination [fn. omitted] does not have a "natural father," as that term is commonly used. The anonymous donor of the sperm cannot be considered the "natural father," as he is no more responsible for the use made of his sperm than is the donor of blood or a kidney.
People v. Sorenson, supra. at 68 Cal.2d 283-284.
The Sorensons signed an artificial insemination contract. When they divorced, no child support order was made. When the mother became ill, the county provided some child support and charged her former husband with criminal non-support. The Court reasoned,
It is less crucial to determine the status of the child than the status
of defendant as father. Categorizing the child as either legitimate or illegitimate does not resolve the issue of the legal consequences flowing from defendant's participation in the child's existence. Under our statute, both legitimate and illegitimate minors have a right to support from their parents. The primary liability is on the father, and if he is dead or for any reason whatever fails to furnish support, the mother is criminally liable therefor. To permit defendant's parental responsibilities to rest on a voluntary basis would place the entire burden of support on the child's mother, and if she is incapacitated the burden is then on society.(21) Cost to society, of course, is not the only consideration which impels the conclusion that defendant is the lawful father of the offspring of his marriage. The child is the principal party affected, and if he has no father he is forced to bear not only the handicap of social stigma but financial deprivation as well.
The construction thus placed on the word "father" does not distort the statutory language, and it achieves the statutory objective of providing support for the child and prevents an obvious injustice that would result were a child artificially conceived excluded from the protection of a law intended to benefit all minors, legitimate or illegitimate, born or unborn.
Sorenson, supra. at 68 Cal.2d 288.
E. Abolishing Illegitimacy: The Uniform Parentage Act
California adopted the Uniform Parentage Act in 1976. The primary purpose of the Uniform Act was to establish the substantive legal equality of children regardless of parental marital status. While the model act was being drafted the U.S. Supreme Court mandated equal treatment for children, regardless of the marital status of their parents.(22) Weber v. Aetna Casualty & Surety Company (1972) 406 U.S. 164, 92 S.Ct. 1400; Gomez v. Perez (1973) 409 U.S. 535, 93 S.Ct. 872. The U.P.A. carried out the Supreme Court mandate. See Prefatory Note, Uniform Parentage Act, 9B U.L.A. 288-289.
Like the other parentage statutes, the U.P.A. does not purport to exhaustively cover all legal parentage questions. Rather, the U.P.A. focuses on abolition of the status of illegitimacy and proof problems with regard to the identity of the "natural" father. The U.P.A. creates a series of presumptions as to the identity of the "natural" father, which are rebuttable "only by clear and convincing evidence." Family Code §7611. It is noteworthy that the presumptions in the U.P.A. are all framed as presumptions of "natural" paternity. The term "natural" was employed as a substitute for "legitimate." Many men presumed to be the "natural father" have no genetic tie to the child.
In addition to identifying "natural" fathers, the Act does address one aspect of assisted reproduction &endash; confidential medical donor insemination within marriage.(23) Where a husband consents to medical insemination of his wife, the U.P.A. provides that he is "treated in law as if he were the natural father." The donor of semen in a medical setting is "treated in law as if he were not the natural father." Family Code §7613.(24) However, the U.P.A. was not trying to comprehensively address all issues of assisted conception. The Comment to Section 5 (Artificial Insemination), 9B U.L.A. 302 makes the limited coverage(25) clear:
This act does not deal with many complex and serious legal problems raised by the practice of artificial insemination. It was thought useful, however, to single out and cover in this Act at least one fact situation that occurs frequently. Further consideration of other legal aspects of artificial insemination has been urged on the National Conference of Commissioners on Uniform State Laws and is recommended to state legislators.
California courts have recognized that they must fill in the "gaps" in the U.P.A.'s treatment of collaborative reproduction.(26)
F. Newest Statutes: Registering Paternity; Establishing Parentage in D.V.P.A. Cases
A few years ago, California's legislature adopted yet another statutory scheme for recognition of the parent-child status. Family Code §7570-7577 (enacted in 1993) establishes a procedure for voluntary declarations of paternity which removes the need for litigation in many cases. The plan asks unmarried mothers at the time of birth to identify the natural father, and then provides him with a declaration form and information about registering his paternity. By voluntarily registering legal parentage, litigation becomes unnecessary. Next year yet another parentage statute, SB 564 (Ch. 39, Stats. 1997), allowing determination of parentage in Domestic Violence Prevention Act actions, will go into effect.
G. Parentage by Equitable Estoppel
In addition to the statutory schemes, California's courts have exercised their inherent equitable powers to establish parentage under estoppel theories. Husbands who assumed the social role of parent have been estopped from denying their parentage to avoid child support. In re Marriage of Johnson (1979) 88 Cal.App.3d 848, 152 Cal.Rptr. 121; In re Marriage of Valle (1975) 53 Cal.App.3d 837, 126 Cal.Rptr. 38; and Clevenger v. Clevenger (1961) 189 Cal.App.2d 658, 11 Cal.Rptr. 707.
H. Common Policy Threads Across Diverse Bodies of Parentage Law
Common threads of social policy run through all of these analytical frameworks. Teasing out those common threads will assist the Court in resolving Jaycee's parentage in a manner which protects her, without doing violence to existing law.
First, the purpose of parentage law is to establish parent and child relationships for the protection of children. No parentage legislation and no parentage precedents are directed at protecting putative parents from responsibility for children.
The marital presumption protected children against bastardy. The modern "paternity" action ensured children economic support. The blood test legislation was aimed at overcoming testimony that no sexual contact had taken place, or that the woman had multiple partners and thus no one man could be singled out as the father.(27) Sorenson held the husband responsible for his deliberate procreative conduct. The Uniform Parentage Act eased determination of a child's parents, and protected children from the loss of rights based upon illegitimacy. The new registration legislation makes it easy for unmarried fathers to assume legal parental responsibilities. The equitable estoppel cases prevent husbands who have acted as fathers from abandoning children at the end of a marriage. The thrust of each component of parentage law is to extend the protections of the parent-child relationship. The trial court departed from the primary thrust of parentage law in excusing John from parental responsibility.
Seven elements which contribute to the determination of parentage run through both the statutory and decisional law. These elements of parenthood which run through all of California parentage law are as follows:
- genetic links
- gestational links
- marital or quasi-marital relationship with other parent
- assumption of social/ psychological role and parental responsibilities
- intent
- causation
- best interests
Courts must weigh these elements of parenthood, and resolve disputes in the way which best serves the interests of children and the state. No single factor is necessarily determinative of parentage. The weight to be given to each factor depends upon the public policy considerations presented by the factual situation. Jaycee does not share genetic or gestational links with either of the putative parents before the Court. Those with whom she does share those links have been ruled out. Thus her parentage must be determined with reference to the remaining non-biological factors.
Existing law recognizes the importance to children and the state of establishing paternity. Jaycee will enjoy a different quality of life as the child of a single parent. Enacting Family Code §7570-7577 (Establishment of Paternity by Voluntary Declaration), the Legislature found:
There is a compelling state interest in establishing paternity for all children. Establishing paternity is the first step toward a child support award, which, in turn, provides children with equal rights and access to benefits, including, but not limited to social security, health insurance, survivors' benefits, military benefits, and inheritance rights.... Additionally, knowing one's father is important to a child's development.
Family Code §7570(a).
If Luanne is Jaycee's sole source of economic support, it is likely that she must work longer hours, and have less time available for her daughter. In the event that Luanne is unable to work, Jaycee will have no economic safety net.
It is also important to note the extent to which the outcome in a parentage case is contextual. It makes a difference whether the action is brought by a putative parent to establish relationship rights, against a putative parent to establish support responsibilities, or in the context of inheritance or benefits which flow from the parent-child relationship. It also makes a difference when, in the life of a child, the action is brought and whether the putative parent has functioned as a social and psychological parent. The marital or quasi-marital relationship of the man and woman are significant factors. In cases of assisted conception, the intent of the adult parties matters.
In the absence of another putative parent, either blood tests or social and marital relationships may suffice to establish paternity. A blood test may not always control in a contest between two putative fathers, if the non-biological father has assumed the social role of parent and/or married the child's mother.(28)
Similarly, in the absence of another putative mother, maternity under the Uniform Parentage Act is established by proof that the woman gave birth to the child. However, gestational ties are not enough in the face of the combined elements of genetic ties and a marital relationship with the father. Johnson v. Calvert (1993) supra.
PART THREE:
Applying the Policies Under Existing Law
A. Jaycee's Fundamental Interest in Recognition of Her Parents
Is Protected by the U.S. and California Constitutions
Parents meet children's basic needs for love, sustenance, survival and growth. There can be no human right more fundamental than the child's right to the protection and care of parents. Children have a constitutionally protected privacy interest in preserving their parent-child relationships. American Academy of Pediatrics v. Lungren (August 5, 1997) 97 Daily Journal D.A.R. 10141. The circumstances of a child's conception and birth are not grounds for depriving that child of any of the protections which flow from the parent-child relationship. Weber v. Aetna Casualty & Surety Company (1972) 406 U.S. 164, 92 S.Ct. 1400; Gomez v. Perez (1973) 409 U.S. 535, 93 S.Ct. 872.
The trial court's ruling stripped Jaycee of the vital protections of family based solely upon the method of her conception and gestation. The failure of Jaycee's family to organize her birth within existing statutes and case law cannot be a basis for leaving Jaycee without parental protection.
B. The Adoption Paradigm Serves No Public Policy Goals
in the Context of Collaborative Reproduction
California courts have employed two different paradigms to determine parentage in surrogacy cases. In Johnson v. Calvert, supra., our Supreme Court found that gestational surrogacy is more like a parentage case. In Marriage of Moschetta, supra., this Court found that traditional surrogacy is more like adoption. The trial court erred in applying the Moschetta analysis to a case which did not involve the same public policy concerns. Parentage law has a pre-natal focus, entailing the recognition of parent-child relationships at conception or any point thereafter. Adoption is post-natal and entails the severing of one parent-child relationship and the creation of a new one.
In Johnson, as in the present case, the role of the surrogate was parallel to that of a sperm donor. The surrogate entered into a relationship to bear a child who would be genetically unrelated to her. The bonds resulting from gestation alone were held insufficient to overcome the parent and child relationship which existed between the child and the genetic/intended parents. There was no parent-child relationship between the baby and the surrogate. No relinquishment or termination of parental rights of the surrogate was required before Mrs. Calvert could acquire parental rights.
By contrast, the surrogate in Moschetta was carrying her own biological child. The combination of genetic parentage and maternity brought the surrogate and her child within the protection of the Uniform Parentage Act's definition of "mother". Consequently that relationship would have had to be terminated before the "intended" mother could acquire parental rights.
Jaycee has no mother within the meaning of the Uniform Parentage Act. Her case involves the recognition of parent-child status ab initio, not the transfer of that status from one parent to another.
Application of the adoption paradigm creates delay, unnecessary expense, and uncertainty about parentage. It does not provide certainty and stability in children's parent-child relationships. Application of the adoption paradigm is detrimental to the children of collaborative reproduction because it permits intended parents to abandon such children. If the adoption paradigm is applied to surrogacy and other forms of collaborative reproduction, intended parents can enter into arrangements for the creation of such children with secret reservations, knowing that they have no responsibility for such children unless and until an adoption is completed.
In Jaycee I. this Court said:
Holding that Pamela, the birth mother, is the natural mother (and thereby, by extension, holding that John cannot be the father) is unlikely to comport with the ultimate result in this case. As our Supreme Court pointed out in Johnson, to rule that the birth mother in a gestational surrogacy agreement is the natural mother is to burden her with "responsibilities" she never contemplated and is directly "contrary to her expectations." The Johnson court underscored the importance of intentions on page 94 of the opinion, where it quoted from a law review article which advocated their presumptive importance. {Ibid. quoting Shultz, Reproductive Technology and Intent-Based Parenthood: An Opportunity for Gender Neutrality (1990) Wis.L.Rev. 297, 323 (" 'intentions' that are voluntarily chosen, deliberate, express and bargained-for out presumptively to determine legal parenthood." [fn. omitted]).}
[] Pamela is not like a natural mother who gives her child up for adoption, but at the last minute the prospective adoptive parents back out. She carried a child that would not have been conceived but for the contract with the intended parents.
Jaycee I., supra. at 42 Cal.App.4th at 701.
Here the trial court failed to look for a good fit between the adoption paradigm it applied and the underlying public policies served by that paradigm. Like the child in Johnson v. Calvert, Jaycee would not have been conceived in the absence of the B.'s. Unlike the child in Moschetta, Jaycee does not have a "mother" who has both gestational and genetic ties to her and who wants recognition of her maternity. The facts of this case therefore more closely resemble Johnson than they do Moschetta.
The public policy concerns which shaped adoption law do not carry over into donor surrogacy.
Traditional adoption practices represent a study in contrasts, simultaneously reinforcing and breaking away from traditional ideas of family. Adoption by definition breaks away from the traditional idea of family, since it involves the transfer of a child from its birth parents to new parents with whom there is no biological link. At the same time, adoption law reinforces the significance of biologically linked parenting. Virtually all adoption regulation takes a negative or restrictive character, reflecting the underlying premise that the transfer of a child from birth to adoptive parents is an inherently risky proposition. Thus, adoption regulation is for the most part designed either to protect birth parents and children from being wrongfully separated from each other, or to protect children from being placed with unfit or otherwise inappropriate adoptive parents. There is almost no adoption regulation that takes a positive or facilitative form to ensure that children in need of homes receive them at the earliest possible time.
Elizabeth Bartholet, Beyond Biology: The Politics of Adoption & Reproduction (1995) 2 Duke J. Gender L. & Pol'y 5
Adoption differs from donor gestational surrogacy in significant ways which were ignored by the trial court. Adoption is a legal process for the transfer of parental status from a birth parent to an adoptive parent. Adoption cannot occur until after birth. Children are not deliberately conceived for the purpose of surrendering them for adoption. Rather, the adoption process involves the complete termination or surrender of birth parent rights, followed by the transfer of parental status to adoptive parents.(29) Neither the termination/surrender of parental rights, nor their transfer to "new" parents may take place until after the birth of the child in order to ensure the genuineness of the birth mother's consent. Adoptions cannot be finalized until after the birth of the child because it is believed that a genetic/gestational mother may not fully appreciate the significance of a decision to surrender her child until after birth. Consequently, the law provides for a waiting period, and formalities for the giving of consent by the birth mother. Once parental rights are terminated, the state protects the child by assessing the suitability of the replacement parents.
Parentage proceedings do not create parent and child relationships, they recognize pre-existing relationships. Parental status begins at conception, rather than after birth. The parent and child status exists independent of any litigation. The purpose of parentage litigation is to resolve uncertainty about existing legal parent and child status. Legal recognition of parentage in cases of collaborative reproduction involves neither the termination of parental rights nor the state's involvement in scrutinizing potential parents. Legal action is only needed in the event of a dispute about parental status. Just as the state does not scrutinize the fitness of prospective natural parents prior to conception, the state does not scrutinize prospective parents who use collaborative reproduction techniques. Such scrutiny would represent an unconstitutional intrusion into family and individual liberty and privacy rights to conceive and raise one's children. Meyer v. Nebraska (1923) 262 U.S. 390, Skinner v. Oklahoma (1942) 31 U.S. 535, May v. Anderson (1953) 345 U.S. 528, Griswold v. Connecticut (1965) 381 U.S. 479, Eisenstadt v. Baird (1972) 405 U.S. 438, Roe v. Wade (1973) 410 U.S. 113.
This case does not involve the termination of birth parent rights, responsibilities and duties and their re-assignment to adoptive parents. Jaycee's gestational mother, her genetic mother and her genetic father do not have any parental status to surrender or terminate. By operation of law, none are her legal parents. Thus no public policy purpose is served by the court's use of an adoption model in which parental rights have to be conferred by a legal process, rather than existing from birth. There is no original, biological mother whose consent could not be perfected until after the child's birth. The state is not removing a child from birth parents. The intended parents are the birth parents. Consequently, the protections of adoption, applied in this case, would not operate to protect the target person. Instead, they served an unintended purpose which was contrary to public policy. Rather than looking to adoption procedures, the trial court should have been guided by the law of artificial insemination.
Nothing in adoption law was designed for the purpose of allowing persons who had undertaken parental responsibilities a last minute opportunity to change their minds. The delay until after birth in finalizing adoptions is unrelated to the rights, needs or interests of the adopting parents. In arguing for application of the adoption paradigm, John exploited protections which were not aimed at putative fathers. His sole purpose was to escape parental responsibility for the child he deliberately brought into the world.
C. John and Luanne Are Jaycee's Parents Under
California's Common Law Definition of "Parent"
Jaycee's parentage is controlled by People v. Sorenson, supra. That holding does not depend upon the particular reproductive technology employed. Rather, Sorenson applies to all forms of intentional assisted reproduction. Under Sorenson, deliberate procreative conduct is sufficient to create the legal status of parenthood.
The principle of Sorenson is so obvious and basic that it need not be belabored. As to issues of filiation, there is no difference between engaging in coitus and contracting for the conception and birth of a genetically unrelated child through forms of assisted reproduction. There is no nexus between the differences in type of reproductive conduct and responsibility for the resulting child. When one engages in conduct which can result in the birth of a human being, one is responsible for that human being. The state, for public policy reasons, has excused donors of genetic material and surrogate mothers from the class of responsible persons. This serves a compelling state interest in permitting the use of non-coital reproduction by prospective parents. No state interest of any kind is served by exempting John from parental responsibilities.
Independent of the issue of parentage, the State may wish to regulate access to and usage of those reproductive technologies. Thus far, California has chosen not to do so, except in the case of artificial insemination.
Bastardy law denied the child filiation based upon the taboo reproductive conduct of the parents. The Supreme Court held bastardy laws unconstitutional. Similarly, California law cannot deprive Jaycee of parents based upon the novelty of the reproductive conduct which produced her.
D. Jaycee Is a "Child of the Marriage" of John and Luanne
Jaycee is a child of the marriage of Luanne and John. In People v. Sorenson, supra., the Supreme Court held that the definition of father in Penal Code §270 included men who consented to their wives' utilization of reproductive procedures. Similarly, this Court must interpret the references in the Family Law Act to "child of the marriage," "mother," "father," and "child" to include Jaycee and her family.
The court has inherent jurisdiction to determine the parental status of a child claimed by one of the spouses as a child of the marriage. When John filed his Petition to dissolve his marriage to Luanne, the Family Law Act required that he allege whether there were any children of the marriage. The Family Law Act's protection of children of the marriage provides an independent basis for establishing parentage. The concept of "child of the marriage" antedates any statutory scheme, including the Family Law Act and the Uniform Parentage Act. California divorce courts have always had jurisdiction to protect children of the marriage through awards of custody and support. The issue of which children are "children of the marriage" typically arises in the context of a divorce court's powers to make orders concerning those children. Enactment of the U.P.A. did not strip family courts of the independent right to recognize children of a marriage being dissolved.
Luanne and John were married at the time of Jaycee's conception. Like many other married couples, they engaged in deliberate conduct to have a family. As a result of that deliberate conduct, Jaycee was born. From Jaycee's perspective, those are the only facts that matter. They are the only facts that should matter to society as well. When partners to a marriage engage in purposeful conduct to bring children into the world, the state must hold them responsible for the children they created. The responsibilities of a husband and wife to a child whose conception they caused are unaffected by the decision of the parties to end the marriage. Marriage and procreation create rights and responsibilities which may outlive the marriage itself. The Family Law Act governs those rights and responsibilities.
The marital status of the putative parents remains significant, a generation after the abolition of illegitimacy. The conclusive presumption of Family Code §7540 is grounded in marriage. A putative father becomes a presumed father under the Uniform Parentage Act by virtue of his marriage to the child's mother. A married man who consents to the artificial insemination of his wife by a physician is conclusively presumed to be the child's father. The doctrine of parentage by equitable estoppel has been held to be rooted in the marital presumption. Nancy S. v. Michele G. (1981) 228 Cal.App.3d 831, 279 Cal.Rptr. 212. Society continues to prefer the marital family for child-rearing. Marriage as an indicia of commitment to family life thus contributes to the weight of a parentage claim.
E. Failure to Treat Jaycee Identically to Children of Artificial Insemination,
Ovum Donation and Gestational Surrogacy Violates Equal Protection
Children of artificial insemination enjoy certain legal recognition of their parent-child relationships with their genetically unrelated fathers. Family Code §7613. Similarly, children of ovum donation, gestated by their intended mothers, enjoy legal recognition of their parent-child relationships with their genetically unrelated fathers [proof of maternity by birth, Family Code §7610(a)]. Children of gestational surrogacy enjoy legal recognition of their relationships with their intended parents. Johnson v. Calvert, supra. Jaycee is a child of artificial insemination, ovum donation and gestational surrogacy. The public policies which apply to each of those forms of collaborative reproduction apply with even greater force in the case of Jaycee. Yet the trial judge refused to recognize Jaycee's relationship with her intended parents.
Distinguishing men's contribution to the reproductive process (sperm donation) from women's contributions to the reproductive process (ovum donation and gestation) serves no compelling state interest. Each contribution profoundly shapes the resulting child. To support differential treatment in parentage law, there would have to be a distinction between those contributions which matters from the child's perspective. As has been argued extensively herein, the differences between sperm and ovum donation, and between donation of genetic material and gestation, do not make a practical difference in the life of the child. Consequently, such distinctions cannot be the basis for differential treatment of children.
Distinguishing between reproductive contributions in the context of collaborative reproduction is unconstitutional gender discrimination. All gender-based classifications by government must be subjected to heightened scrutiny, and can be upheld only if the state affirmatively advances an "exceedingly persuasive justification" for the classification. United States v. Virginia (1996) 116 S.Ct. 2264. Moreover, generalization about gender which is true in many cases is unconstitutional when it is not true in the particular case. Los Angeles Dep't of Water and Power v. Manhart (1978) 435 U.S. 702, 708-709. Here the gender of Jaycee's biological progenitors (sperm donor, egg donor and gestational surrogate) has no bearing on her life or significant relationships. All of those individuals are out of the picture. The state cannot treat a child of artificial insemination as a child of the marriage and fail to extend that same protection to Jaycee.
Justice Thurgood Marshall explained the need for a nexus between classification and the purpose of the statute, "As in all equal protection cases, the crucial question is whether there is an appropriate governmental interest suitably furthered by the differential treatment." Police Dept. v. Mosely (1972) 408 U.S. 92, 95. The purpose of all parentage law is to ensure that children receive the protection of their parents. Denying Jaycee the protection routinely afforded children born of artificial insemination, egg donation, and gestational surrogacy does not further the purposes of parentage law.
Family Code §7613 violates Jaycee's rights to equal protection and substantive due process. Family Code §7613 irrationally singles out one methodology of assisted reproduction, artificial insemination. Children conceived by artificial insemination enjoy legal recognition of their parent-child relationships with their intended fathers without a genetic link to those fathers. Family Code §7613 does not extend the same protections to children conceived by ovum donation, or to children, like Jaycee, born as the result of donor gestational surrogacy. There is no compelling state interest to distinguish between Jaycee and the child of donor insemination. In adopting Family Code §7613 the Legislation concluded that society (and children's) interests are best served by encouraging assisted reproduction, and recognizing the relationships between children and their intended parents, despite the absence of genetic ties.
The failure to include ovum donation and donor gestational surrogacy in Family Code §7613 is a historical accident. Those newer medical procedures for assisted reproduction did not exist at the time that the statute was enacted. The same social policies which led to Family Code §7613 are furthered by extending the protection of Family Code §7613 to other reproductive technologies. The Court should not permit the novelty of the means by which Jaycee was conceived to distract it from the underlying policy considerations. The particular medical procedure bears no reasonable relationship to the child's rights.
The surrogacy contract constitutes substantial compliance with the written consent requirement of Family Code §7613. See, for example, Lane v. Lane (N.M. App. 1996) 121 N.M. 414, 912 P.2d 290, cert. denied, 121 N.M. 375, 911 P.2d 883, interpreting the artificial insemination section of the Uniform Parentage Act (Section 5). The written consent requirement avoids litigation about whether consent was given. It provides intended parents a moment to pause and reflect upon the seriousness of the decision they have made. In this case, the surrogacy contract should be seen as written consent by the intended mother and father within the meaning of Family Code §7613.
As noted in the historical section of this brief, Family Code §7613's inclusion in the Uniform Parentage Act was not expected to fully address all issues of collaborative reproduction. The Conference on Uniform State Laws promulgated the Uniform Status of Children of Assisted Conception Act (USCACA )9B U.L.A. 187 (Supplement, 1997) in 1988. California has not adopted this act. Nonetheless, as the Court grapples with questions of first impression, the USCACA's analysis will prove extremely helpful. The commissioners had the same task facing this Court, i.e. "to provide order, direction, and design with dignity to the unsettled lives of our target children."
This Act was designed primarily to effect the security and well-being of those children born and living in our midst as a result of assisted conception. The Executive Committee and the general Conference, considering the plight of these children, some with five parents, some with no father, some having no one responsible for support, nurturing, health, well-being, or rights as a person or a member of society, determined that the greatest priority and first call on the energy and talents of the Drafting Committee was to provide an act which addressed these and other deficiencies.
The Drafting Committee has therefore with conscientious dedication addressed itself to the precise issue of the status of children, their rights, security and well-being.
Prefatory Note, Uniform Status of Children of Assisted Conception Act 9B U.L.A. 187 (Supplement, 1997)
Under the USCACA, intended parents(30) are recognized as the legal parents. Donors of genetic material have no parental rights and are insulated from parental responsibilities. The only defense available to a husband wishing to avoid parental responsibilities is non-consent. The Commissioner's explanation of their reasoning in cases of non-surrogate assisted conception applies equally to Jaycee and her procreators:
The presumptive paternity of the husband of a married woman who bears a child through assisted conception reflects a concern for the best interests of the children of assisted conception. Any uncertainty concerning the identity of the father of such a child ought to be shouldered by the married woman's husband rather than the child. Thus the husband ... has the obligation to file an action aimed at denying paternity through lack of consent to the assisted conception, rather than the child or mother having an obligation to prove the husband's paternity.
Comment to Section 3, USCACA, 9B U.L.A. 190 (1997 Supplement)
The state can show no public policy reason for treating Jaycee differently than the children of artificial insemination, ovum donation and gestational surrogacy. Her conception and birth utilized all three technologies. None of her biological procreators intended to assume parental responsibility. None are before this court seeking parental status. The trial court's failure to treat Jaycee's intended parents as her natural parents irrationally discriminated between Jaycee and other children of collaborative reproduction.
F. John Is Equitably Estopped from Denying Parental Responsibility
"Only the Chancellor Can Protect the Innocent and Render Justice" If this Court does not find, under any of the arguments set forth above, that Jaycee is the child of John and Luanne, then it must apply the doctrine of equitable estoppel to prevent a manifest injustice to Jaycee. Evidence Code §623 sets forth the well-established equitable estoppel doctrine, which pre-existed the enactment of the code. John's past conduct precludes him from now asserting that he is not Jaycee's father.
"Whatever of the varying definitions of an estoppel may be accepted, they differ not at all in the one essential, &endash; namely, that by an estoppel a man is precluded from pleading or proving the truth, because in the language of Coke (Coke on Lit., 352a) 'a man's owne act or acceptance stoppeth or closeth up his mouth to allege or plead the truth.' Whatever may have worked the estoppel, whether the estoppel rests in judgment, deed, contract, or in pais, in its essence it amounts to but this, that a man is forbidden to show the existence of a fact because by his past conduct, his declarations, his agreement, his deed or a judgment, it would work an injustice and an injury to his adversary to permit him to do so. "
Allen v. Hance (1911) 161 Cal. 189, 196, 118 P. 527.
John is estopped from denying his parental responsibility for Jaycee because his conduct in arranging for her birth, his declarations, and his participation in the surrogacy agreement caused her to be conceived and born. John undertook fatherhood. Having caused Jaycee's conception and birth, it is unconscionable for John to disavow his duties toward her. The legislature's failure to address this issue does not preclude this Court from affording Jaycee justice. By declining to apply the doctrine of equitable estoppel, the trial court allowed John an unfair advantage over the child he brought into the world.
California appellate courts have applied the doctrine of equitable estoppel in cases concerning the definition of family, and rights and interests flowing from family
relationships. The doctrine was most fully explained in a case involving the estate of
a bigamist:
If the entire estate were distributed to Joan and the four children we would be ignoring and denying the purpose of Civil Code section 4452; and if the entire estate were distributed to Helen we would be ignoring and denying the purpose of Civil Code sections 5126 and 5118 and former section 221 of the Probate Code, as well as the strong public policy which favors and protects marriage and the family. The result in either such case would be grossly unfair and unconscionable.
It is clear that our statutes are not designed to provide for the unique circumstances present in this case. When statutes are in conflict, the requirements of some being in irreconcilable opposition to others, only the chancellor can protect the innocent and render justice.
Since a just distribution of the estate among the parties is not provided by any statute, this case cries out for the firm but fair hand of equity for its resolution.
"Equity or chancery law has its origin in the necessity for exceptions to the application of rules of law in those cases where the law, by reason of its universality, would create injustice in the affairs of men. [citations]" (Estate of Vargas, supra, 36 Cal.App.3d 714, 718, 111 Cal.Rptr. 779.)
[] The first duty of equity is to be equitable. The foundation of estoppel is justice and good conscience. Estoppel applies to prevent a person from asserting a right where his conduct makes it unconscionable for him to assert it, it is a bar to stating the truth when it would be unfair to state it. Estoppel is an equitable doctrine. It acts defensively only. It operates to prevent one from taking an unfair advantage of another, but not to give an unfair advantage to one seeking to invoke the doctrine. [Peskin v. Phinney (1960) 182 Cal.App.2d 632, 636, 6 Cal.Rptr. 389; Franklin v. Merida (1868) 35 Cal. 558, 575.] Estoppel should be employed to prevent or mitigate injustice, not to create or aggravate it.
Estate of Hafner (1986) 184 Cal.App.3d 1371, 1394, 229 Cal.Rptr. 676, 689-690. [emphasis added]
Like Mr. Hafner's second family, Jaycee is an innocent who requires the protection of the court. The state has a strong interest in her protection. John's demand to be protected from the support claims of the child whose life he created can find resonance in no imaginable ethical code.
California courts have applied the equitable estoppel doctrine against men who had fully assumed the parental role in the lives and hearts of children, and then sought to disaffirm it upon divorce. In re Marriage of Johnson (1979) 88 Cal.App.3d 848, 152 Cal.Rptr. 121; In re Marriage of Valle (1975) 53 Cal.App.3d 837, 126 Cal.Rptr. 38; and Clevenger v. Clevenger (1961) 189 Cal.App.2d 658, 11 Cal.Rptr. 707. (".[B]asic moral and social considerations impel the full protection of the child") Those cases applied the general principles of equitable estoppel to cases involving older children and established relationships. In those cases, the courts found the children's belief that the man estopped was their father, as well as the impediment created to finding their biological fathers, constituted reliance. The requirement of the child's belief that the man was her natural father was intended to distinguish between a man who voluntarily supports his wife's child, and one who fully undertakes to act as a father. Clevenger, supra. at 189 Cal.App.2d 674-675.
Jaycee's reliance took a different form &endash; birth. But for John's promise to act as her father, Jaycee would not have been born. John's representation that he would assume parental responsibilities left Jaycee without the protection of any parent. These facts are sufficient to differentiate John from men who generously contribute to the support of their wives' children without undertaking full fatherhood. The surrogacy contract unequivocally provides for John's fatherhood. The circumstances of her conception precluded Jaycee from having a father other than John. Those facts satisfy the requirements of the estoppel doctrine.
Flexibility is intrinsic to equitable doctrines. Equity allows courts to respond to unique and compelling circumstances.
The relationship of father and child is too sacred to be thrown off like an old cloak, used and unwanted. We are dealing with the care and education of a child during his minority and the obligation of a party who has assumed as a father to discharge it. The law is not so insensitive as to countenance the breach of an obligation in so vital and deep a relation, undertaken, partially fulfilled, and suddenly sundered.
Clevenger v. Clevenger at 189 Cal.App.2d 674.
John's assumption of the duties of Jaycee's father caused her birth. He partially fulfilled his commitment to her by supporting her gestational mother during pregnancy. Then John left his marriage to Luanne, and attempted to abandon Jaycee.G. Family Code §7614 Provides an Independent Basis for Child Support This Court need not find that John is Jaycee's father in order to find that he is obligated for her support. Family Code §7614 provides that a written promise to support a child is enforceable, independent of the recognition of a parent-child relationship. The surrogacy contract is a written promise by John to support Jaycee.
Surrogacy contracts have significant legal effect, even though not all provisions may be enforceable. Some terms of such contracts might impose conditions which are contrary to public policy and place children at risk. Such provisions could include clauses which permit the intended parents to reject a child based upon the color of her eyes, gender, disability, the conduct of the surrogate during the pregnancy, or a change of heart. Parenthood by surrogacy should carry no greater opportunity to reject the child than "natural" parenthood.
The state has a compelling interest in protecting the welfare of children by regulating the recognition and transfer of parental status. Children have rights under the federal and California constitutions to protection of their parent-child relationships. Because the child's interests are not represented in the negotiation of surrogacy contracts, the state cannot give private citizens unfettered capacity to determine parental status by contract. The surrogacy contract provides a basis for creating an enforceable duty to pay child support.
The surrogacy contract signed by John constitutes a promise to furnish support under Family Code §7614, which does not require recognition of a parent-child relationship. By that contract, John promised to assume that responsibility for child support that parents owe to children under California's Family Code.
The promise to support grew out of an alleged parent and child relationship within the meaning of Family Code §7614. The contract itself purports to make him a father; thus there is an alleged parent-child relationship within the meaning of the statute. (John may also be a presumed father, under several theories set forth elsewhere in this brief.) That support obligation operates independently of the creation or transfer of parental status. Family Code §7614 specifically provides that no consideration is needed to create such a support obligation and that the obligation exists independently of the parent-child relationship.
Family Code §7614 protects children by enforcing support responsibilities by an alleged father who rejects parental status. By severing the support obligation from the relationship and legal custody components of parenthood, this provision protects children seeking support from the threat of custody litigation brought purely for the purposes of deterring efforts to seek support. Without John's promise to support Jaycee, she would not have been conceived. No good reason can be advanced for excusing John from his written promise to support Jaycee. This Court should enforce it under §7614.
CONCLUSION
"How Toys (and Families) Become Real"
In supporting Jaycee's request that this Court recognize John and Luanne as her legal parents, ACFLS has proposed a coherent scheme, consistent with existing law, by which issues of parentage in cases of collaborative reproduction may be judged. Case by case determination of such issues, having as its focus the particular variant of reproductive conduct which led to the birth, leaves the fates of many children in limbo. Only by clearly stating the child-centric principles underlying determination of parentage in such cases can this Court protect the children of this state.
Where the purpose of parentage law began by protecting paternal power, it has evolved so that its principal purpose is ensuring that children receive the care and support of their parents. Critics have argued that collaborative reproduction has radically reshaped the family. Yet history shows that society has long refused to limit the legal parent and child relationship to biological kin. The essence of parenthood remains the same. Responsibility and care are the heart of parenthood. So long as society considers issues of parentage in the context of that responsibility and care, the core definition of family will remain unchanged. While the things of the heart cannot be controlled in the courtroom, parental care can be honored and parental responsibilities can be enforced. Two-and-one-half-year-old Jaycee already knows(31) the lesson her storybooks tell,
"Real isn't how you are made," said the Skin Horse. "It's a thing that happens to you. When a child loves you for a long, long time, not just to play with, but REALLY loves you, then you become Real."
Margery Williams, The Velveteen Rabbit or How Toys Become Real
How she was made has nothing to do with whether Jaycee is a "real" daughter. Whatever this Court does, Jaycee has a real mom. This Court's ruling should reflect Jaycee's reality.
Whatever this Court does, only John's heart can give her a real dad. (One can imagine John assuaging his pangs of guilt by whispering to himself, "I'm not her real father.") But this Court, by finding jurisdiction for an award of child support, can give Jaycee more time with her real mom, free from unnecessary economic anxiety. This Court can give her an economic safety net. John's life will always be smaller for having walked away from the opportunity of fatherhood. This Court should not allow him to also walk away from the responsibilities.
All forms of procreative conduct, whether in the laboratory or the bedroom, entail an irrevocable social contract. Families are not real because of "how they are made." In fact, how families are made tells us almost nothing important about them. ACFLS joins Jaycee in asking this Court to honor and recognize her family. In so doing, this Court should establish principles which ensure that all children like Jaycee will enjoy familial care and protection. As the conference on Uniform State Laws observed, we are
faced with the birth of many beautiful, innocent children brought into the world through certain extraordinary procedures which will ultimately require regulation, but meanwhile the status of these children demands our attention. These children are without traditional heritage, or parentage and other fundamentals, they are buffeted by forces beyond their comprehension and control. Although without guile or fault, but because of accident of birth, these children of the new biology have been deprived of certain basic rights.
Children then are the first priority, others can wait at least until the children are taken care of
U.S.C.A.C.A., Prefatory Note, supra. at 196 (Supplement 1997)
RESPECTFULLY SUBMITTED,
__________________________________
LESLIE ELLEN SHEAR
Attorney for Amicus Curiae Association of Certified Family Law Specialists
1. "We now live in an era where a child may have as many as five different 'parents.' These include a sperm donor, an egg donor, a surrogate or gestational host, and two non-biologically related individuals who intend to raise the child. Indeed, the process of procreation itself has become so fragmented by the variety and combinations of collaborative-reproductive methods that there are a total of sixteen different reproductive combinations, in addition to traditional conception and childbirth. This total is the product of varying the source of the male gametes (whether by husband or third-party sperm donor), the source of the female gametes (whether by wife or third-party egg donor), the location of fertilization (whether in the wife, the laboratory, or the surrogate host), and the site of gestation (either in the wife or the surrogate)."
John Lawrence Hill, What Does it Mean to Be a "Parent:? The Claims of Biology as the Basis for Parental Rights (1991) 66 N.Y.U. L. Rev. 353, 354.
2. The pleadings are included in the "Request of Appellant/Respondent, Luanne H. B., to Augment Record on Appeal" dated November 3, 1997 and received by this office on November 10, 1997.
3. Her income and expense declaration showed net monthly disposable earnings of $511.67 based on her employment as a dog trainer. Monthly living expenses for Luanne and Jaycee were shown as $2,020. John declared net monthly disposable earnings of $1,662.39 from his work as a paralegal and claimed monthly expenses of $1,795.
4. Pamela and Randy subsequently filed a parentage action which was consolidated with the dissolution proceeding. That action was dismissed with prejudice pursuant to the terms of a stipulation and order finding that no parent and child relationship exists between the S.'s and Jaycee.
5. The term encompasses all forms of non-coital reproduction in which persons other than the intended parents participate in producing a child through contributions of genetic material, and/or through gestational surrogacy. The first, and still most common method was artificial insemination. Others include ovum donation, traditional surrogacy (surrogate mother inseminated with intended father's sperm), gestational surrogacy (surrogate mother inseminated with pre-embryo produced from genetic material of intended parents), and donor gestational surrogacy (surrogate mother inseminated with pre-embryo produced from donor genetic material). Scientific advances are increasing the possibilities for collaborative reproduction at a dizzying rate. As scientists develop the ability to selectively transplant portions of DNA, the number of potential biologic contributors to the creation of a child increases.
6. The term is used here to differentiate the parent-child relationship which exists at conception and birth from the one created after birth through adoption. Birth parents are the child's parents at the moment of birth.
7. "[S]ome men see parenting and marriage as a part of the same bargain &endash; a package deal; it is as if they stop being fathers as soon as the marriage is over."
Frank Furstenberg, Jr. and Andrew J. Cherlin, Divided Families: What Happens to Children When Parents Part (1991: Harvard University Press) 38.
8. See Barbara Bennett Woodhouse, "Out of Children's Needs, Children's Rights": The Child's Voice in Defining the Family (1994) 8 BYU J. Pub. L. 321, 322-323.
9. See Bruno Bettleheim, The Good Enough Parent (Vintage:1988).
10. The term "best interests" has a special meaning in custody disputes between parents. The "best interests" doctrine represented a shift between parental rights approaches to child custody, such as the tender years presumption, and a focus on the child's needs. It is, purposefully, an indeterminate standard. Each child's best interests encompass individual and unique considerations, as well as social values.
11. "I have named this perspective 'generism' to evoke words like 'generation' and 'regeneration,' 'genius' (guardian spirit), 'genus' (ours in homo as in homo sapiens), and "generous" (willing to share, unselfish), all of which derive from the Latin generare and genere (to beget) and the Greek gignesthai (to be born, to become). The notion is hardly new. [fn. omitted] Erikson uses the term 'generativity' to describe a sense of concern and commitment towards the young that signals psychological maturity. [fn. omitted] Philosopher John Rawls' description of justice includes the principle that each generation must pass along to the next generation more than it received. [fn. omitted] "
Woodhouse, supra. Hatching the Egg: A Child-Centered Perspective on Parents' Rights, 14 Cardozo L. Rev. at 1754-1755.
12. "While the courts may recognize an older child's interest (or curiosity) in the facts of their conception, such interest has little weight compared to the other interests at state. [Citation omitted.] Smaller children do not even understand the difference between psychological and biological parent. 'Unlike adults, children have no psychological conceptions of relationship by blood-tie until quite late in their development [] These considerations carry no weight' (Goldstein, Freud, Solnit 1979,12) Nor are the physical realities of conception and birth the direct cause of a child's emotional attachment to a parent. This attachment results from day-to-day attention to his needs for physical care, nourishment, comfort, affection, and stimulation (ibid, 8)."
Wolfgang Hirczy, Protecting the Father-Child Bond Against Non-Paternity Action: Legislative, Judicial and Constitutional Approaches, www.legal.net
13. "The interests of the child are served by a system that places the child in parental hands as unambiguously as possible. [fn. omitted]. Any conflicting claims to the child should be resolved as smoothly and immediately as possible. Once the child has changed hands, the arrangement should be final. [fn. omitted] Courts in surrogate cases have given little consideration to the child. Most often the child had already been relinquished by one set of parents by the time the court rendered a final decision."
Andrea E. Stumpf, Redefining Mother: A Legal Matrix for New Reproductive Technologies (1986) 96 Yale L.J. 187.
14. "There is little doubt that the development of secure emotional ties between a parent and child has fundamental and long-lasting significance. It is well-established that infants failing to form a bond with any adult are likely to lack the ability to form deep and enduring relationships later in life. [fn. omitted] One study found a strong correlation between insecurely attached infants and those who experience a higher level of nonmaternal care in the first year of life. [fn. omitted] Another study maintains that all infants who are placed for adoption after nine months of age have difficulties with a variety of "socioemotional" matters, including establishing certain kinds of relationships with others. [fn. omitted] Still other studies indicate that the quality of attachment in infancy may affect the IQ of the child [fn. omitted] and the development of the child's sense of self-identity, thereby affecting the child's ability to cope with various environments including schools."
John Lawrence Hill, What Does It Mean to Be a "Parent"? The Claims of Biology as the Basis for Parental Rights (1991) 66 N.Y.U.L.Rev. 353, 402
15. That aspect of psychological attachment which comes from recognizing traits of oneself and one's family in one's child.
16. "Human procreation can be accomplished through a variety of reproductive technologies that do not involve sexual intercourse. Among these artificial techniques are surrogate motherhood, [fn. omitted] in which a woman is artificially inseminated [fn. omitted] with a man's sperm, bears his child, and gives the child to the man and his wife to be raised as their child; [fn. omitted] in vitro fertilization, in which the egg and sperm are united in a culture dish, where the egg is fertilized and the resulting embryo implanted in the woman's uterus; [fn. omitted] and embryo or ovum transfer, in which an egg is fertilized in a donor and transferred to a prospective mother's womb."
Judith Lynn Bick Rice, The Need for Statutes Regulating Artificial Insemination by Donors (1985) 46 Ohio St. L.J. 1055
17. See discussion in John L. Mandler, Developing a Concept of the Modern "Family": A Proposed Uniform Surrogate Parenting Act (1985) 73 Geo. L.J.1283, 1284-1289.
18. "The notion of illegitimacy has been around for centuries. During the Middle Ages, children born to unmarried mothers were called 'filii nulii,' or those who were 'sons of no one.' These words were less a statement of biological fact than a designation of undesirability. Illegitimate children were linked to their mothers because of their birth, but not to their fathers by any social arrangement. In later centuries, governments created civil laws to protect a man's property against inheritance by an illegitimate child. Similarly, church doctrine preserved the sanctity of marriage by stigmatizing children born outside it. A baby born to an unmarried mother was commonly referred to as a 'bastard.' The French called such children 'fils de bast,' which means 'child of the saddle bag' &endash; a rootless, deviant outsider."
Melissa Ludke, On Our Own: Unmarried Motherhood in America (Random House:1997) at page 398.
19. The presumption originally was found at Civil Code §1962. With the enactment of the Evidence Code it became Evidence Code §621. Most recently, it has been moved to Division 12 (Parent and Child Relationship) of the Family Code.
20. Artificial insemination may actually be older than that. Shalev reports that the first reported case of artificial insemination in human beings was performed by "an English surgeon, Dr. John Hunter, in 1799, not long after the identification of the microscope and the consequent identification of sperm " She also notes that the Talmud contains discussions of non-coital conceptions. Birth Power: The Case for Surrogacy, supra. at 59.
21. The record in this case indicates that Luanne's earnings are insufficient to support her household.
"Receipt of adequate child support frequently makes the difference between being self-supporting and having to go on welfareIn 1987, for example, there were 9.4 million women in the United States with children under 21 years of age whose fathers were not present in the household [O]nly 59 percent of this group were awarded child support payments by a court. Only about half of these women (one-third of the entire group) received the full amount of support owed. Another one-fourth received no child support at all."
U.S. Dept. of H.H.S., National Institute for Child Support Enforcement, Paternity Establishment (3rd Edition: 1990), 2-3.
22. Some aspects of the law continue the status of illegitimacy. Miller v. Albright (1997) 117 S.Ct. 1689 (Mem), 137 L.Ed.2d 817, was argued before the U.S. Supreme Court on November 4, 1997. At issue was the constitutionality of a provision of federal law which confers citizenship on the foreign born children of unmarried American mothers, but requires judicial recognition of paternity prior to the child's eighteenth birthday if the citizen-parent is an unmarried father. The child, joined by the ACLU as amicus curiae, contends that the law embodies unconstitutional discrimination based upon gender and parental marital status.
23. Where artificial insemination of an unmarried woman occurs outside of the medical setting, the donor retains parental rights and responsibilities. Jhordan C. v. Mary K. (1986) 179 Cal.App.3d 386, 224 Cal.Rptr. 530.
24. While the U.P.A. extended coverage only to artificial insemination within marriage, California omitted the marriage requirement.
25. The conference subsequently (1988) promulgated the Uniform Status of Children of Assisted Conception Act. 9B U.L.A. 195 (Supp.). California has not adopted that Act. The act includes surrogacy but does not contemplate a fact pattern in which neither husband nor wife has genetic or gestational ties to the child.
26. "Scholars have anticipated that the UPA's skeletal formulation of AID would spawn numerous legal problems, and have frequently urged legislative clarification. (See, e.g., com., The Need for Statutes Regulating Artificial Insemination by Donors (1985) 46 Ohio St. L.J. 1055; Note, Artificial Insemination and Surrogate Motherhood &endash; A Nursery Full of Unresolved Questions, supra, 17 Willamette L.Rev. 913.)"
Alexandria S. v. Pacific Fertility Medical Center, Inc. (1997) 55 Cal.App.4th 110, 119, 4 Cal. Rptr.2d 23.
27. "Until the fairly recent development of blood testing for paternity, the mother's sexual conduct was a central issue in these actions. The main defense was the exceptio plurium concubentium, according to which the action was barred without further ado if it were shown that the mother had had sexual relations with other men at about the time the child was conceived. It appears that it was originally sufficient to produce evidence of the mother's general unchastity. In effect, this amounted to an invitation to the alleged father to commit perjury with a friend who, if subsequently charged with paternity, could invoke the same defense."
Carmel Shalev, Birth Powersupra. at 32-33.
28. See Glen H. Schwartz, Fathers In Law, Los Angeles Lawyer Vol.20, No. 5, page 38 (July-August, 1997) exploring California decisions recognizing men not biologically related to children as legal fathers.
29. Family Code §8616 provides, "After adoption, the adopted child and the adoptive parents shall sustain towards each other the legal relationship of parent and child and have all the rights and are subject to all of the duties of that relationship." Family Code §8617 provides: "The birth parents of an adopted child are, from the time of the adoption relieved of all parental duties towards, and all responsibility for, the adopted child, and have no right over the child."
30. The definition of "intended parents" restricts the applicability of the Act to cases in which either the husband's sperm or the wife's egg is used. Nothing in the Comments explains why the child must have a genetic link to one of the intended parents. No identifiable social policy is served by that restriction. The Commissioners evidently did not contemplate that couples would choose assisted conception to produce a child genetically unrelated to either parent. Thus the Comment to the Surrogacy section re