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PARENTHOOD: CALIFORNIA STYLE

Jaycee B. v. Superior Court (1996) 42 Cal. App.4th 718, 731 (Jaycee I)
Marriage of John B. and Luanne B.
(order 9/9/97, 4th Dist. Case. No. G022147) (Jaycee II)

Co-Sponsored by the ASSOCIATION OF CERTIFIED FAMILY LAW SPECIALISTS (www.ACFLS.org) and THE STATE BAR OF CALIFORNIA FAMILY LAW SECTION. Originally Presented at the State Bar of California Annual Meeting, San Diego, California
©1997. Leslie Ellen Shear

On August 29, 1997 the Orange County Superior Court declared a toddler, Jaycee B., to have been born with no legal parents. The Fourth District stayed the trial court order terminating child support and awarded temporary custody of Jaycee to Luanne. The Association of Certified Family Law Specialists, the American Civil Liberties Union and the Attorney General of the State of California have filed amicus curiae briefs on behalf of Jaycee. Oral argument is expected to take place in January.

This case provides an opportunity to consider the competing values and social policies that bear on all nontraditional family cases.

Jaycee B. is a gestational surrogacy case, involving anonymous donors of both ovum and sperm, and a married surrogate unrelated to the intended parents. Jaycee's birth came about as the result of a decision by John and Luanne, a married couple, to have a baby. They entered into a surrogacy agreement with another married couple, Pamela and Randy. Pamela was to be implanted with an embryo created with anonymously donated sperm and ovum. John and Luanne were the intended parents, who were to assume responsibility for the child's care from birth.

A month prior to Jaycee's birth, John petitioned to dissolve the marriage, alleging that there were no children of the marriage. In her response, Luanne alleged that the parties were expecting the birth of a child of the marriage. Following Jaycee's birth, Luanne sought custody and child support.

Luanne was designated by the trial court, pendente lite, as Jaycee's "custodial person," rather than as a parent. The trial court denied pendente lite child support, and the Fourth District reversed. Citing Johnson v. Calvert., the Court held that it was likely that John would be found to be Jaycee's father, and thus he should pay pendente lite support. Learning of the divorce between John and Luanne, Pamela and Randy sought parental rights and custody. That issue was ultimately resolved by stipulation. At trial, Jaycee, a child with SIX potential parents, was found to have no legal parents. Child support and custody orders were terminated.

"SOMETIMES I FEEL LIKE A MOTHERLESS CHILD"

JAYCEE AND HER SIX NON-PARENTS

©1997 Leslie Ellen Shear

Dimensions of Relationships

  1. John Doe (anonymous sperm donor)
    1. Relationship
      1. Genetic Parent
      2. Non-invasive Donation
      3. Contractual Protection
      4. Intent Not to Have Parental Rights and Responsibilities
      5. Expectation to Preserve Anonymity
      6. Altruistic or Financial Motivation
      7. Expectation that Birth of Wanted Child Would be in Child's Best Interests
    2. Legal Relationship
      1. Family Code §7610 Uniform Parentage Act (UPA): Father = Natural Father
      2. Family Code §7555 (Uniform Act on Blood Tests to Determine Paternity)

BUT

  1. Family Code §7613(b) Artificial Insemination Donor "treated in law as if he were not the natural father."
  2. Estopped to claim parentage since allowed all other participants to rely on waiver of parental rights?
  3. U.S. Supreme Court: Didn't come forward to assume parental responsibility (Quillon v. Wolcott, Caban v. Mohammed, Lehr v. Robinson)?
  4. Child's Constitutionally Protected Right to Relationship With Natural Father? (Michael H. v. Gerald D. Different if No One Wants to Be Dad and Left Without Support?)
  1. Jane Doe (anonymous egg donor)
    1. Relationship
      1. Genetic Parent
      2. Surgical Donation (Invasive, Some Risks)
      3. Contractual Protection
      4. Intent and Expectation Not to Have Parental Rights and Responsibilities
      5. Expectation to Preserve Anonymity
      6. Altruistic or Financial Motivation
      7. Expectation that Birth of Wanted Child Would be in Child's Best Interests
    2. Legal Relationship
      1. Family Code §7610 Uniform Parentage Act (UPA): Mother = Natural Mother
      2. Equal Protection Argument to make Family Code §7555 (Uniform Act on Blood Tests to Determine Paternity) gender neutral

BUT

  1. Family Code §7613(b) Artificial Insemination Donor "treated in law as if he were not the natural father." See Footnote 3 in Jaycee I, suggesting that this should also apply to egg donors (equal protection? need for legislation?)
  2. Estopped to claim parentage since allowed all other participants to rely on waiver of parental rights?
  3. U.S. Supreme Court: Didn't come forward to assume parental responsibility (Quillon v. Wolcott, Caban v. Mohammed, Lehr v. Robinson?
    1. Only applies when bio parent seeking rights or can bio parent use to defend against child's claim?
    2. Only applies to men or is an egg donor the equivalent of a semen donor since her primary tie is donation of genetic material?
  4. Child's Constitutionally Protected Right to Relationship With Natural Parent? (Michael H. v. Gerald D., particularly Brennan plurality)
    1. Applies to Mothers?
    2. Applies in Absence of Social-Psych Relationship?
    3. Different Because Luanne Wants to Be Mom?
    4. Luanne and Jane both Moms with Jane owing Duty of Support? (But No Same-Sex Parents per Michael H., Johnson v. Calvert, and Barkaloff v. Woodward. Possible equal protection argument since second parent adoption available to gay couples, why can some kids have same-sex parents and not others?)
  1. Pamela
    1. Relationship
      1. Gestational Parent (prenatal biological nurture and bonding)
      2. Part of a Marital Family
      3. Intent and Expectation Not to Have Parental Rights and Responsibilities
        1. Couldn't Anticipate Hormonally and Experientially Induced Bond at Birth? (But Didn't Come Forward at Birth?)
        2. Not Committed Parent Since No Intent and Expectation at Conception (Same as an Unplanned Pregnancy)
      4. Intended For Child to Live in John/Luanne Marital Family Thwarted
      5. Contractual Rights and Obligations
      6. Altruistic and Financial Motivation at Conception
      7. Wants Parental Rights and Responsibilities
    2. Legal Relationship
      1. Family Code §7610 (natural mother proved through birth)
        1. Family Code §7632 "Regardless of its terms, an agreement between an alleged or presumed father and the mother or child does not bar an action under this chapter."
          1. Does this mean that surrogacy agreements are invalid against a gestational or genetic mother's claim?
          2. What if it is a stipulation to non-maternity, ratified by the Court as in this case? Can Pamela void her stipulation?
      2. See In re Baby Girl M. (New Jersey) (genetics + gestational trumps intended mother)
      3. Johnson v. Calvert (intention + genetics) trumps birth in surrogacy cases)
        1. Dictum in Johnson v. Calvert at 5 Cal.4th 94-95, "In what we must hope will be the extremely rare situation in which neither the gestator nor the woman who provided the ovum for fertilization is willing to assume custody of the child after birth, a rule recognizing the intending parents should best promote certainty and stability for the child." Does this mean that Pamela's claim would defeat Luanne's claim?
        2. If so, does she have to come forward at birth? Failure to come forward at earliest opportunity (by analogy to the unwed father cases) defeats later claim? What if Luanne dies when Jaycee is 5 years old?
        3. Compare: Intention does not trump genetics if consent withheld at birth for independent adoption? Does genetic + gestational give greater rights than just gestational?)
          1. See dictum in Jaycee I at 49 Cal.Rptr. 701 "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."
            1. What if both Luanne and John backed out?
          2. Why is conception the key moment for intent formation? What if a woman conceived a child through intercourse by her husband with the intention of adoption by another couple? Does their intent or expectation matter?
      4. Estopped to claim parentage since allowed all other participants to rely on waiver of parental rights?
      5. Does child have constitutionally protected interest in maintaining a relationship with her gestational mother in the absence of any other legal mother/parent?
      6. Marital Family (Pamela, Randy & Jaycee) to Be Protected per Michael H.?
  2. Randy
    1. Relationship
      1. Spouse of Gestational Parent (Emotional, Social and Financial Support During Pregnancy, Possible Psychological Attachment to Child)
      2. Part of a Marital Family
      3. Intent and Expectation Not to Have Parental Rights and Responsibilities
      4. Intended For Child to Live in John/Luanne Marital Family Thwarted
      5. Contractual Rights and Obligations
      6. Altruistic and Financial Motivation at Conception
      7. Wants Parental Rights and Responsibilities
      8. Acting in Jaycee's Best Interests by Allowing to Grow Up in the Marital Family that She Was Born Into
    2. Legal Relationship
      1. Family Code §7540 Conclusive Presumption of Paternity (Marital Presumption) "Except as provided in Section 7541, the child of a wife cohabiting with her husband is presumed to be a child of the marriage." Substantive Law, not shortcut for natural father. See Kusior v. Silver.
        1. Cohabiting at time of conception, not impotent or sterile.
        2. Is Jaycee a child of Randy's wife?
        3. 2-year window for blood test motion per Family Code §7541 doesn't apply where wife, with husband's consent, conceived by means of a surgical procedure.
        4. Protects integrity of the only functioning marital family per Michael H.
        5. Constitutional against claims of other possible parent-child combos?
        6. Rights lost if not acted upon promptly?
      2. Family Code §7570 et. seq. What if Randy and Pamela Signed a Declaration of Paternity at Time of Jaycee's Birth?
        1. Purpose of Act:

"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. Knowledge of family medical history is often necessary for correct medical diagnosis and treatment. Additionally, knowing one's father is important to a child's development." (Note the ranking: support, medical history and relationship as an afterthought).

  1. Applies only to unmarried and natural mothers. Is that limitation constitutional? Rational/Compelling state interest for children of unwed moms, but not married ones where marital presumption doesn't apply?
  2. Is Pamela a "mother" within the meaning of the statute and thus able to sign the declaration?
  3. Conclusive Presumption (Family Code §7576), overrides all statutory presumptions other than marital and blood tests.
  4. 60-day Recission Period
  5. Rebuttable by blood tests (3-year window, any person "whose blood is involved" per Family Code §7551).
    1. Blood = DNA or blood = gestation?
  6. Set-aside for fraud or perjury (Mother must avow "only possible father," maybe that's true here.)
  7. Constitutional ?
  1. Uniform Parentage Act Rebuttable Presumptions (Presumed Natural Father)
    1. Family Code §7612 Conflicting Presumptions: "the presumption which on the facts is founded on the weightier considerations of policy and logic controls."
    2. Family Code §7632 "Regardless of its terms, an agreement between an alleged or presumed father and the mother or child does not bar an action under this chapter."
      1. Does this mean that surrogacy agreements are invalid against a presumed father, a "natural" father, or a genetic father? against various mothers?
    3. Family Code §7611a : Married to the Child's Natural Mother?
      1. Is Pamela Jaycee's Natural Mother for Purposes of this Presumption?
      2. What Constitutes Rebuttal?
        1. Blood tests
        2. Judgment of Paternity for Another Man (race to court?)
        3. Allows another to assume the role of social father...or competing with social father in marital family.
  1. John
    1. Relationship
      1. Intended Parent at Conception
      2. Highly Motivated to Become Parent (Extraordinary Lengths of Surrogacy)?
        1. Just Supported Luanne's Strong Wishes?
        2. Second Thoughts?
        3. Doesn't Feel Able to Act as Parent Outside Marriage?
      3. Rejects Parental Rights, Responsibilities and Relationship Prior to Birth
      4. Part of Marital Family at Conception
      5. Ended Marital Family Prior to Birth
      6. Contractual Rights and Obligations
      7. Could Argue Acting In Child's Best Interests or Indifferent to Child's Interests
        1. Not to Give Her Hostile or Disinterested Parent? (We don't care in conventional support paternity cases).
        2. Not to Raise Her in Non-Marital Family
    2. Legal Relationship
      1. Family Code §7611a. Uniform Parentage Act (married to child's mother at birth).
        1. Turns on Court Finding that Luanne is Jaycee's Mother.
        2. Can't rebut with blood tests because blood tests of John Doe barred as AI Donor.
      2. Family Code §7549 Conclusive Marital Presumption
        1. Turns on Court Finding that Luanne is Jaycee's Mother.
        2. Can't rebut with blood tests because blood tests of John Doe barred as AI Donor.
        3. Perhaps sterile, otherwise why did they use donor sperm?
          1. Genetic condition
          2. Low sperm but not sterile
          3. Wanted super-baby
      3. Johnson v. Calvert When other bases for parentage don't apply, intended parent controls, i.e. intention to assume parental role creates rights.
        1. Can that analysis be applied to confer paternity where it is unwanted? In Johnson everyone wanted to be Christopher's parents.
          1. Intention allowed as a basis for parentage partially because it indicates desire to act as a good parent, in child's best interests ("certainty and stability for the child"). That rationale does not apply here.
        2. Intent to Cause Birth Creates Responsibilities: Dictum in Jaycee I "it is enough that John admits he signed the surrogacy agreement which, for all practical purposes caused Jaycee's conception every bit as much as if he had caused her birth the old-fashioned way." i.e. this is no different than an unplanned pregnancy. Causing conception creates responsibilities to the child, both for the child's benefit and because otherwise the state must shoulder the burden.
          1. On that theory, all six contributors to the surrogate birth have parental responsibilities since all acted in concert to cause conception.
            1. Excuse donors in favor of public policy to encourage donation.
            2. Excuse surrogate and husband in favor of public policy to encourage surrogacy?
          2. Allowing a person such as John to escape responsibility for the child he caused to be born allows individuals to enter into surrogacy contracts lightly, retaining the right to back out and abandon the child if they experience a change of heart. No rational social policy is served by such a rule.
          3. Does Purpose for Which You Caused Child to Be Conceived Affect Ability to Seek Parental Status? (
            1. To Raise Child as One's Own?
            2. To Make Wife, Girlfriend, Husband, Grandparent Happy?
            3. To Give Another Child a Sibling?
            4. Organ Donor?
            5. Produce Heir?
            6. Take to Thailand for Sex Trade?
      4. Expansion of Adoption by Estoppel / Equitable Parent Doctrine
        1. Judge Monarch declined to apply estoppel, without any explanation of his decision.
        2. Marriage of Clevenger, Marriage of Valle (children not bio-kids of either party)
          1. Only been used to create parental support responsibilities, never to obtain custodial rights over those of a natural parent. See Nancy v. Michele, Guardianship of Ethan S. But dictum in Valle suggests that, in the absence of a natural parent, estoppel could prove the basis for custody rights.
          2. Elements
            1. Putative father represents to child that he is natural father;
            2. Child relies on representation by treating him as her father;
            3. Child ignorant of true facts;
            4. Representation was of such duration that it frustrated realistic opportunity to discover natural father.
          3. Application here:
            1. Putative father took actions to cause child's birth;
            2. Course of conduct ensured that there was no other responsible father;
            3. Represented to other participants that he would assume parental responsibilities.
            4. Child born. If John is not estopped from denying paternity, Jaycee will be left fatherless.
            5. Unconscionable to bring a child into the world and then disclaim responsibility.
  2. Luanne
    1. Relationship
      1. Intended Parent at Conception
      2. Highly Motivated to Become Parent (Extraordinary Lengths of Surrogacy)
      3. Assumed Parental Rights, Responsibilities and Relationship at Birth
      4. Child Bonded to Her as Sole Psychological and Social Parent
      5. Part of Marital Family at Conception
      6. Marital Family Severed Before Birth
      7. Wanted Marital Family to Continue?
      8. Would Have Welcomed Post Disso Shared Parenting?
      9. Contractual Rights and Responsibilities
      10. Acting in Child's Best Interests
    2. Legal Relationship
      1. Expand Johnson v. Calvert to recognize intended parent.
        1. Surrogacy a variation of assisted conception available to allow people to enjoy their liberty/privacy interest to procreate.
        2. Recognition of Intent/Contract/Expectation allows people to use this technology without fear child will be placed in limbo or subjected to a tug of war.
        3. Only highly motivated mother would resort to this technology, thus assurance of commitment to parenting.
        4. Other adult participants estopped from denying Luanne's maternity since she relied upon their promise that Jaycee would be her child.
        5. Recognition of Luanne as Jaycee's parent assures child of stabile parental care.
        6. No rational basis for distinguishing between Luanne and a wife who is pregnant when husband files divorce. Unconstitutional not to deem Jaycee a child of the marriage.
      2. Expand "taking into the home and holding out as natural child doctrine" (social parent) to encompass mothers.
        1. Family Code §7650 "Any interested person may bring an action to determine the existence or nonexistence of a mother and child relationship. Insofar as practicable, the provisions of this part applicable to the father and child relationship apply. Insofar as practicable, the provisions of this part applicable to the father and child relationship apply."
        2. Will not create two legal mothers.
        3. Similar difficulty in ascertaining "natural" mother in this case as there was in ascertaining paternity in the cases that the Uniform Parentage Act was adopted to remedy.
        4. Social status afforded to Jaycee in the absence of the presumption is akin to that of an illegitimate child prior to the adoption of the UPA. That defeats the intent of the UPA.
        5. Allowing dissolution of marriage to deprive Luanne of parental status violates Family Code §7602: "The parent and child relationship extends equally to every child and to every parent regardless of the marital status of the parents."
      3. Guardianship (Detriment + Best Interests)
        1. Custody to a Parent Would be Detrimental (Family Code §3041)
          1. If any of the others are legal parents, removing Jaycee from Luanne and placing her with another would be detrimental because it separates her from her primary psychological parent. In re Kaylee J., see also, In re Philip B.
          2. Contrast alternate definitions in In re: Carmaleta C. ("acting in a fashion incompatible with parenthood") and Guardianship of Stephen B. (Primary bond to proposed guardian not sufficient to defeat custody claim of legal parent.)
        2. Pure "best interests" test for parentage and guardianship would create a bidding war for every health child, which would be skewed in favor of upper middle class, affluent, educationally advantaged and psychologically sophisticated potential claimants, and/or mainstream lifestyles.
        3. Must show detriment before you can reach issue of best interests.
      4. Not permanent, doesn't create full parental rights, just custody.
      5. Meaningless exercise in the case where Luanne is the only one who wants to raise this child.
    3. Adoption
      1. Requiring use of the adoption process prevents "pure contract" creation of parental rights without opportunity for state scrutiny and protection of child's best interests. If it is possible to privately create a parent-child relationship by consent, without the participation of the state, then there is no reason for prospective parents to use the adoption process.
      2. Adoption would include social study and ensure suitability of Luanne's home.
  3. Jaycee
    1. Relationship
      1. Powerless to influence the circumstances of her birth.
      2. Needs Love, Daily Care, Committed and Consistent Parenting
        1. Marital Family Best Family Form For Childrearing?
        2. Two Parents Best Family Form For Childrearing?
        3. Hillary Rodham Clinton Village?
        4. In absence of "optimum" family model, leave parentless?
      3. Psychological and Social Relationship with Luanne
        1. Psychologically Healthy Parent (Good Enough Parent, No Detriment)
        2. Motivated Parent
      4. Needs Financial Support
      5. Genetic Bonds to Jane and John Doe
        1. Temperamental compatibility, genetic psychological bonding
        2. Identity, Cultural Identification/Roots
        3. Medical Info plus Donors
      6. Gestational Bonds to Pamela
        1. Shared blood, tissue, sounds and body rhythms...does attachment begin?
      7. Bonds to Randy
        1. Heard his voice during gestation, he's committed to her gestational mother
        2. Identity
      8. Self-Esteem (Wanted and Loved Child)
      9. Inheritance, Social Security, Death Benefits, etc.
      10. Privacy/Normalcy
    2. Legal Relationship
      1. Critical to appoint minor's counsel/guardian ad litem
        1. Child's rights, particular constitutional rights, may differ from those of adult litigants.
        2. Child's best interests should be separately articulated from the claims of the adults.
        3. Don't want to have second lawsuit subsequently brought on behalf of the child.
        4. Family Code §7635 (UPA) requires joining child older than 12 and makes it optional to join younger child as a party.
        5. Minor's counsel can aggressively advocate for partial gag orders, file sealing and keeping child's identity private.
        6. Minor's counsel can prevent settlements and stipulations which are not in the child's best interests.
      2. All of the theories advanced above can be separately advanced on Jaycee's behalf.
      3. Trial court order has the effect of creating a subclass of children who have no legal parents.
      4. To leave her without the protection of parents violates Jaycee's equal protection rights. There is no rational basis for treating Jaycee differently than
        1. the natural child of married or unmarried parents;
        2. the child born by artificial insemination to married parents;
        3. Johnson v. Calvert-type children.
      5. Failing to legally recognize Jaycee's functioning family relationship with the only mother she has ever known violates Jaycee's equal protection and substantive due process rights.
      6. Failing to compel the man who caused her conception to assume support responsibilities to her deprive Jaycee of substantive due process and equal protection. There is no rational basis, much less compelling state interest, for society to leave Jaycee without support, while compelling support from men who cause children to be born without assuming responsibility for raising them. Rather, the state has a strong interest in ensuring that every child is supported.