Introduction
Almost two years ago, the California Court of Appeal handed down a decision which sent ripple waves through the reproductive law community. Now, the same panel of justices are poised to yet again consider the facts of this unusual case. And, once again, a new round of media attention and public debate is sure to ensue.
Since this case created headlines throughout the world in 1996, it has been commonly accepted that it is yet another example of a surrogacy case gone awry. However, upon closerinspection, Jaycee B. v. Superior Court1 is really a garden variety dissolution matter wherein one of the parties is seeking to avoid his parental support obligations.
The case, which originally attracted international attention in 1996, involved the birth of a baby girl, Jaycee, created through donor sperm and a donor egg, and gestated by a gestational surrogate. One month prior to the birth of Jaycee, the Intended Parents, John and Luanne, separated and John sought to rescind his obligations under the surrogacy contract so as to avoid having to pay child support for Jaycee. Luanne sought both custody and support from her ex-husband.
In its initial 1996 opinion, the California Court of Appeal determined that sufficient evidence existed to conclude that John could be the legal father of Jaycee for purposes of an interim child support order and remanded the case to Judge Monarch of the Orange County Superior Court for further rulings.
Earlier last year, Judge Monarch, in apparently disregarding the reasoning of the higher court, concluded that John had no further support obligation to the now two-year old Jaycee, held the surrogate contract to be unenforceable and further stated that Luanne would have to complete an adoption to finalize her parental rights."2
Parenthetically, while the Surrogate initially sought custody of the non-biological child she delivered, such claim appears to have been motivated solely by her discouragement upon learning of the Intended Parents' divorce proceedings and the possible absence of the family environment she initially contemplated. However, after being reassured that Jaycee would be raised in a loving home by Luanne, the surrogate withdrew her opposition. Consequently, the Orange County Superior Court was not directly addressing the enforceability of the surrogate contract or the legal rights under any gamete donation contract."3
Analysis
Unfortunately, yet another aberrational case has caused a further blemish to the field of collaborative reproduction. Among the myths disseminated following this ruling is that Jaycee remains "parentless." Nothing could be further from the truth as Jaycee remains with Luanne. Instead, the lower court held that in order for Jaycee's mother to finalize her parental rights, she must undertake an adoption of her child and, in a seemingly gratuitous offering, found the surrogate agreement to be unenforceable.4
The adoption ruling was actually ancillary to the fundamental issue before the court: Is John obligated to provide financial support to Jaycee? While many may be critical of this simplistic view of Jaycee B.,consider the following hypothetical: John and Luanne realize their dream of beginning a family as Jaycee is delivered and goes home with them. After a period of time (whether it be several months or several years), John seeks a divorce from Luanne and claims that he has no financial responsibility to support Jaycee because she is not his biological offspring.
Under such a scenario, how many legal pundits would analyze Jaycee B. under the surrogate model? Rhetorical questions aside, no one can genuinely argue that John would not be legally, morally and ethically obligated to financially support Jaycee. Returning to the actual facts, John would have the Court reward him for leaving Luanne immediately prior to Jaycee's birth. Stated differently, if John and Luanne conceived Jaycee through "traditional" means, and during Luanne's pregnancy, John filed for dissolution, California law would impose support obligations upon him.
Consider another scenario: What if John and Luanne adopted Jaycee? Needless to say, John could not evade his support obligations by claiming that Jaycee was adopted and, hence, had no genetic ties to him. A similar result would be reached if John and Luanne, while married and with John's consent, used donor sperm, resulting in only Luanne's biological relationship to Jaycee.5 Under California law, and most other states which have adopted the Sperm Donor Act, John would be found to be Jaycee's legal father, with all the rights and obligations associated with same.
So, the question remains, why the focus upon the method of reproduction rather than the outcome of the parties procreative efforts? It seems that for many, portraying this lawsuit as a "surrogacy" case, assists in achieving other objectives. By way of example, from a media perspective, the Jaycee B. case is much more sensational if presented as one in which a child is parentless in the face of the existence of six potential parents. Certainly, Jaycee B. has served as fertile ammunition for those calling for legislation prohibiting surrogacy, by raising misleading and intellectually dishonest arguments.6
It is significant to note that Jaycee B. does not present the situation of a woman claiming superior maternal rights by virtue of her capacity as the birth and/or genetic mother. In fact, nothing could be further from the truth. All parties in Jaycee B. conceded, as did the Court, that Luanne is Jaycee's mother.7
Casting the above discussion aside, and for purposes of argument only, assessing this case as a "surrogate" situation reveals other troubling issues. To satisfy legal protocol, a legal "clearance letter" should have been issued by John and Luanne's counsel before the gestational carrier commenced medication and underwent the transfer. 8 The prerequisites for such a letter includes the obvious requirement that contracts be executed by all parties. The record on appeal reveals that John did not sign the surrogate contract until after the transfer. While the factual significance will likely be minimal in this particular case, it does represent a deviation from the standard of care typically found in surrogate arrangements. Under no circumstances should the parties have been permitted to proceed with the medical process until all the preliminary legal work had been concluded.
Also, there has been no attention to paid to the conspicuous failure to finalize Jaycee's rights prior to her birth. Based on the facts in the appellate record, John filed his Petition for Dissolution as the Surrogate was entering the last month of her pregnancy. Under California law, a Judgement of Maternity and Paternity could have been obtained as early as the couple's reproductive endocrinologist could confirm the surrogate's pregnancy resulting from the transfer of embryos belonging to John and Luanne. Most practitioners would have obtained the Judgment no later than the 34th week of the surrogate's pregnancy. Had this Judgment been obtained, the issue of Luanne's maternity would never have become an element in this case. Instead, the focus would have simply been on a parent's attempt to avoid his child support obligations, an all-to-ubiquitous occurrence in today's society.
Other problems remain with Judge Monarch's ruling. The adoption prerequisite is not in harmony with current California law and also raises serious constitutional questions. Under current California law and practice, no formalized legal proceedings are necessary to finalize parental rights of recipients of donor gametes. In particular, a married couple who utilizes donor sperm is not obligated to finalize their parental rights as they are considered to be the resulting child's legal parents. 9
Yet, taken to its logical conclusion, Judge Monarch's ruling would require a recipient of a donor oocyte to adopt her child. Such a ruling would clearly violate the United States Constitution Equal Protection clause, requiring that similarly situated individuals be treated equally. To treat recipients of donor oocytes differently than recipients of donor sperm, would be to engage in the most basic form of gender discrimination.
Sadly, from all appearances, this fundamental constitutional challenge was either not raised by the Intended Mother and Jaycee's attorneys, or was ignored by the Judge Monarch. In the most recent briefing filed with the Court of Appeal, the counsel for Jaycee failed to raise the constitutional equal protection argument. Fortunately, an extremely articulate and persuasive Amicus Curiae brief filed by the Association of Certified Family Law Specialists addressed this most critical and fundamental argument. Boding well for proponents of assisted reproduction is the thoughtful brief filed by Leslie Shear of ACFLS and that the appellate panel set to hear the appeal is not only the same panel which issued the first ruling in this extraordinary case, but perhaps even more significantly, was the same group of justices who rendered the initial opinion in Johnson v. Calvert.
It is also interesting to note that the appeal was initially filed by the appointed attorney for Jaycee -- not by Luanne. Assuming that Luanne elected not to appeal Judge Monarch's order terminating child support, how are any surrogate issues being impacted? There is no indication in the appellate briefs made available to date, that the parties exclusive of the child support issue, could not stipulate to Luanne's maternity. Did the parties seek to bifurcate the undisputable issue of Luanne's maternity from the remaining issues involving John's child support obligations and Jeffrey Doeringer, Jaycee's lawyer, attorney fee award?
In this vein, how can there be a dispute as to the maternal status of Luanne if no one else but Luanne claims maternity? Since the biological mother donated her genetic material and relinquished her rights, she is not a potential legal parent. Similarly, the surrogate voluntarily terminated her parental rights to Jaycee and, under the holding set forth in Johnson v. Calvert, can not be considered the legal mother. Who then is Luanne supposed to adopt Jaycee from?
Another question worth consideration is whether it truly is in the best interests of Jaycee that this matter be appealed. If Luanne is capable of financially supporting Jaycee, whose interests are being furthered by this appeal?
While the foregoing questions only serve to highlight the surrogate ramifications of this case and provide further fodder to the opponents of surrogacy, they are meaningless in analyzing the actual issues presented in Jaycee B. The ultimate issue to be considered in Jaycee B. is whether a non-biological father, akin to an adoptive parent, can be held responsible to support his child.
Conclusion
With the daily revelations regarding developments in cloning and reproductive medicine, it has become expedient and politically correct to criticize these advances. The Jaycee B. case has been enveloped in this cloud of cynicism, fear and ignorance. Distilled to its very essence, by removing the political, religious, ethical and emotional components, Jaycee B. is simply a case involving child support. The smoke screen that has been created, for whatever reasons, should not obfuscate this reality. Moreover, the real victims in this entire process have been Jaycee and Luanne, a mother and daughter who are entitled to be a family without having to endure any further scrutiny or legal proceedings.
Footnotes:
1. Jaycee B. v. Superior Court, 42 Cal. App. 4th 718 (1996).
2. It would also appear that such a conclusion would not only contravene Johnson v. Calvert, 5 Cal 4th 84 (1993), but constitutional equal protection grounds. For more information on this aspect, please feel free to contact the author for supplemental materials.
3. Perhaps the most glaring omission in the news stories regarding this case is the absence of any contrast of this situation to the "Baby M." series of cases. In the past, contested surrogate cases have involved a dispute between the surrogate and her spouse and one or both of the intended parents, each asserting claims of maternity or paternity superior to the other. The Jaycee B. case did not present such a fact pattern and thus is unfairly being characterized as a surrogate case. The presence of a surrogate in this case is purely incidental to the dispute before the court and any argument to the contrary only serves to obfuscate the issues to be considered.
4. It remains unclear the basis for the holding that the contract was unenforceable as numerous claims were made by John regarding the validity of the agreement, including his failure to sign the contract prior to the embryo transfer. Given, among other reasons, the ruling in Johnson v. Calvert, it is extremely remote that the Court of Appeal could find that gestational contracts offend public policy and are thus unenforceable. Rather, there may be something unique about this particular contract and the circumstances regarding its execution, that render the agreement unenforceable. Since the underlying court record was sealed, and the appellate briefs did not elaborate upon this aspect of Judge Monarch's ruling, any further discussion would be conjecture.
5. See California Family Code ß7613.
6. Unless the opponents to surrogacy are prepared to ban the ability to dissolve a marriage, any claim that the Jaycee B. case serves as the justification to ban surrogacy, is disingenuous. The litigation that occurred in Jaycee B. could have resulted regardless of the method of procreation. A married couple, utilizing traditional family building options, could be faced with the identical situation where one of the parents seeks a divorce prior to the birth of their child. Taken to its logical absurdity and in order to be consistent, those who use Jaycee B. to advance their anti-surrogacy platform based upon the ill-conceived outcome determination model, should be equally dogmatic in their insistence that courts prohibit the act of divorce, as only through such a ban could they avoid leaving a child "parentless."
7. Even Judge Monarch acknowledged such, in an indelicate remark, "sooner or later, she [Luanne] is going to get it [Jaycee]."
8. The reasons for a clearance letter are numerous and could serve as an independent basis for an article. For purposes of this article, suffice it to say, substantial liability issues could arise if the participants to an assisted reproductive arrangement proceeded without finalizing the contractual terms and the surrogate suffered injuries from the medication and/or embryo transfer procedure.
9. See California Family Code, ß7610,7613.
© January 20, 1998
Copyright 1998. The American Surrogacy Center, Inc.(TASC), Kennesaw, GA
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