November 25, 1997
Honorable Justice David G. Sills
Honorable Justice Thomas F. Crosby
Honorable Justice Edward J. Wallin
Court of Appeal of the State of California
Fourth District, Division Three
925 North Spurgeon Street
Santa Ana, California
Re: Marriage of John B.(1) and Luanne B. (4th Dist. Case. No. G022157)
and In re Jaycee B.(order 9/9/97, 4th Dist. Case. No. G022147)
Dear Justices Sills, Crosby and Wallin:
The Association of Certified Family Law Specialists (ACFLS) requests amicus curiae status on behalf of the minor child in the pending case of Marriage of John B. and Luanne B.(2) and In re Jaycee B.(order 9/9/97, 4th Dist. Case. No. G022147).
ACFLS INFORMAL REQUEST FOR AMICUS CURIAE STATUS ACFLS represents 529 California attorneys who are certified as Family Law Specialists by the State Bar of California, Board of Legal Specialization. The Association
- participates in and facilitates discussion, debate and analysis of important issues affecting California's family lawyers and litigants in family law courts,
- provides advanced education programs for the bar, judiciary and the public, and
- monitors and provides commentary concerning administration of the specialization program, family law legislation and court rules.
ACFLS has a great interest in children's issues. The issues before this Court were the topic of our recent program at the State Bar Annual Meeting (September 14, 1997).(3) The ACFLS Minors' Counsel Committee contributed to the drafting of AB 1526, and conducted two successful statewide colloquia on issues relating to representing children in California family law courts. The ACFLS Appellate Committee submitted amicus curiae briefs in Marriage of Droeger and Katz v. Trope.
ACFLS wishes to contribute to the Court's consideration the important issues this case presents. The public senses a dissonance between the trial court ruling and our values about the importance of children and their family relationships. If John B. had commissioned cattle to be bred using selected ova and sperm, and rejected them on delivery, leaving them without water or grazing space, he would have been prosecuted for cruelty to animals. That he "commissioned" the conception of a human being should not free him from responsibility to the person who was born as the result of his choices. His behavior, and the trial court's ruling, shock the conscience of our community.
The trial court's ruling deprived Jaycee of her rights to privacy, due process of law, and equal protection under the United States and California Constitutions. Our state Supreme Court recently held that children have a constitutionally protected privacy interest in preserving their parent-child relationships, and that state actions which impinge upon that interest must be reviewed under the compelling state interest test. American Academy of Pediatrics v. Lungren (August 5, 1997) 97 Daily Journal D.A.R. 10141. No privacy interest can be more fundamental than a child's interest in recognition of the parent-child relationship. No compelling state interest can be served by leaving Jaycee without parental care and support.
ACFLS asks that the Court consider the arguments contained herein, and afford it an opportunity to submit a full brief on behalf of Jaycee B.
COMBINED STATEMENT OF FACTS AND STATEMENT OF THE CASE
On August 29, 1997 the Orange County Superior Court declared a toddler, Jaycee B., to have been born with no legal parents. This Court issued an invitation to the parties to reply informally to Jaycee's petition for a writ of supersedeas. This Court also stayed the trial court order terminating child support, but made no custody orders. There is no existing order assigning Jaycee's custody, so the child is without any person legally responsible for her care, and legally authorized to make decisions on her behalf.(4)
Jaycee B. is a donor 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 in the family law proceeding, characterizing Jaycee as a "child of the marriage" under the Family Law Act.(5)
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. She continues to reside with Luanne.
This Court stayed the trial court's termination of the temporary support order, and invited the adult parties to informally respond to the minor child's writ petition.
ARGUMENT
THIS CASE PRESENTS IMPORTANT QUESTIONS OF LAW
The Court should hear this case in order to resolve important questions of law, which bear not only upon cases of gestational surrogacy, but upon what definitions of the parent-child relationship may be constitutionally applied in a variety of settings.
A search on the Internet(6) turns up thousands of cross-references to surrogacy, including research, support groups, medical-legal-psychological services, reports of case, surrogacy centers, and merchandising of gift items relating to surrogacy. Not all of the information is accurate, but it appears that increasing numbers of children come into the world as a result of surrogate arrangements. To many would-be parents facing infertility problems, surrogacy is a miracle. To others in our society, it is baby-selling or the exploitation of women's bodies. While most surrogacy arrangements appear to go forward as planned, and do not result in litigation, the increase in utilization of these methodologies, and related ones makes this likely to be a recurring issue for California courts.
Science is expanding the possible ways for children to come into the world at a dizzying pace. A child may have multiple "natural" mothers and fathers, none of whom may be her intended or social parents. Even with existing scientific capacities, putting aside questions of cloning and genetic engineering, there are many different possible factual patterns.
Existing parentage law is subject to constitutional scrutiny even in cases where there are no issues of medically assisted or manipulated conception. It is necessary for the Court of Appeal to articulate a coherent set of standards for assessing whether existing statutes and precedents are Constitutional as applied to these cases. Such standards should be framed with special emphasis on the child's substantive due process and equal protection rights.
California has not adopted legislation which permits the creation of a parent and child relationship by contract, although elements of contract analysis, such as intent and reliance, are considered in determining parentage.(7) If contract analysis is expanded into the area of parentage, then individuals, not the society, can create and transfer parental rights. Surrogacy, like independent adoption, should preserve an element of choice yet require State participation to protect the child.
When adults engage in actions which bring a child into the world, what analytical framework best serves society's interest in protecting the next generation? Surrogacy contracts purport to govern the rights and interests of a person not yet born, who cannot participate in the negotiation of the relationships essential to her future survival, care and support. Contracts cannot create parenthood, because the process leaves out the State and the child. Children may not be the subjects of commerce, and, while the liberty interests of parents to create families by choice are important, that liberty is not unfettered. Instead of asking whether a private contract should be enforced, courts must ask, "What factors are most important for determining which parent-child connections create legal rights and responsibilities?" While intent may be a significant factor, intent alone should not control. Focusing on the intent of the adults does not necessarily protect the child(8).
The facts here also raise an opportunity to expand the doctrine of equitable estoppel. The Court might also consider whether the obligation to support can exist independently of parenthood as the result of estoppel.(9)
The trial court declined to apply the estoppel doctrine against John B. in this case, without articulating the reasons.(10) Is it unconstitutional to differentiate between children who have experienced the husband in the social role of father during a marriage, and children who would not exist but for the actions of the husband?(11) To what extent should the circumstances of conception matter when the child's rights are at issue?
Should the price of receiving support from John include the risk that he can, after rejecting Jaycee, later seek legal or physical custody? Rather than being estopped from denying his parental status, perhaps John should be estopped from withdrawing his economic support.
Do the benefits to society from encouraging egg and sperm donation and surrogacy are a compelling state interest justifying insulation of the donors and the gestational family from parental responsibilities if the child is left without parental protection? Do the benefits to adults who wish to use these methods of conception outweigh society's need to ensure that all children have parents?(12) Should Jaycee be entitled to support from any or all of the six adults who cooperated in her conception, even when they expected immunity from support obligations? Does the right of privacy in matters of procreation extend to assisted conception and reproduction?
ARGUMENT
JAYCEE'S RIGHT TO PARENTAL PROTECTION, CARE AND SUPPORT IS PROTECTED BY THE U.S. AND CALIFORNIA CONSTITUTIONS
The state must require(13) those who bring children into the world to be responsible for their care and support. Protection of children is one of the reasons organized society exists, and is essential to its continuation. At birth, every child carries the potential to change the world she is born into, in large ways and in small ones. Jaycee is no less important to the future of California, the United States and the world than any other child. The method of her conception has no effect on her needs, or her potential contribution to society. It should not be used as an excuse to leave her without the protection of parents. When our children go unprotected, our future as a society is placed at risk.
California failed in its primary societal purpose when the trial court held Jaycee B. to be, in effect, a bastard -- a child born parentless. Jaycee B. suffers the same legal disabilities which were imposed on the illegitimate children of an earlier era. No one has responsibility or legal authority to provide her care. She has no right to support. She has no rights to inheritance, or to any of the employment, insurance, government, and other benefits which are tied to the establishment of a parent-child relationship. Even orphans have inheritance rights, death benefits, etc.
The existence of a parent-child relationship is fundamental to the child, to each of the parents and to the society. From the child's vantage point, legal ties to parents confer status in the society. That status carries rights of care, support, inheritance, etc. American society confers primary responsibility for protection, care, support on parents. The child's right to protection of her relationship with her parents is entitled to the highest level of state protection.
Liberty to procreate and to raise our children has special importance in a democracy. Parenthood is recognized as one of the experiences that gives the life of the individual meaning. Parents also pass on culture and values to children, thereby shaping our future society. Except when they act in extreme ways, the State does not interfere with the rights of parents to choose how to raise their children. Parentage is not determined based upon an individual child's best interests because to do so would substitute the State's idea of those best interest for the citizen's views. Yet policies which determine which parental relationships are legally recognized should be based upon principles which further the collective best interests of the children in our society.
To conclude that a child born as the result of the purposeful conduct of six adults has no legal parent is a perversion of California parentage law. Such a holding serves no conceivable state interest, furthers no articulable social policy, and benefits only those who choose to disclaim responsibility for her care. There is no justification for concluding that the means of conception, a choice over which the child has no power, can shape her legal status. A society which holds the parties to a one night stand responsible for the child born of an accidental pregnancy should not hold the deliberate procreators of a child to a lesser degree of responsibility.
By finding that Jaycee has no legal parents, the State ought to assume responsibility for her care. However, at present, there is not even any person with the legal status to apply for welfare benefits on her behalf, or authorize childhood inoculations.
CONCEALING CHILD'S NAME AND IDENTIFYING CHARACTERISTICS
ACFLS urges this Court to identify the parties and child in this case (and all custody and parentage cases) by initials only. Those portions of the file which contain information such as full names, addresses or other information by which the specific child may be identified should be redacted before the public is given access to Court records involving children.
The trial court records have been sealed, and subject to a "gag" order pursuant to Family Code §7643. This Court provided the press with complete access to the record, including detailed identifying information. It is possible to fashion a restraining order which allows counsel and parties to discuss the legal and social issues which such cases present while limiting the ability of the press to identify the particular child.
Two-year-old Jaycee has had her name, age, county of residence, employment of her intended parents and other detailed factual information published in many media sources. Further exposure as the case moves through the courts and gains in public awareness, may make it impossible for this toddler to lead a normal life.(14)
Family Code §7643. provides that hearings in parentage actions be closed and that access to records of such proceedings be limited to the parties and counsel. The public policy underlying that statute is protection of privacy rights of the child and her family. Children in custody and parentage cases have done nothing to invite public attention. They should not have the burdens of public figure status thrust upon them because their life situation presents interesting or important legal questions.
Identification of a specific child contributes nothing to the public debate about the issues raised by this case, or the public scrutiny of the Courts. Identification places the child at risk of psychological harm and, in some cases, of physical harm. The public need not know the identity of the child in order to understand the issues raised by the case. Too often the faces of children involved in such actions in our state are found on the front pages of our newspapers or filling our television screens.
Jaycee's right to privacy requires special protection by the Court. Unlike adult public figures, children in custody and parentage litigation cannot choose not to litigate. Exposure to the press, photographers, and others who choose to exploit her notoriety for profit or titillation cannot be in the best interests of any child. Nor do the child's name, image, or personal details about her life meaningfully contribute anything to the public discussion of gestational surrogacy and the legal definition of the parent-child relationship.
Where children's privacy rights and first amendment rights clash California courts have held that protection of the child's privacy interest is a compelling state interest which overrides first amendment claims. See San Bernardino County Dept. of Public Social Services v. Superior Court (1991) 232 Cal.App.3d 188 , at page 205 [283 Cal.Rptr. 332]; In re Keisha T. (1995) 38 Cal.App.4th 220; Estate of Hearst (1977) 67 Cal.App.3d 777, 136 Cal.Rptr. 821. The duty of the court is to protect the child's best interests, which includes protection of the child's privacy interests. There is no basis for distinguishing dependency and juvenile cases from parentage cases. In fact, dependency and parentage cases are alike in that the conduct resulting in the litigation was by the adults, and that the purpose of the litigation is protection of the child.
Jaycee B. is without a legal parent to make decisions about the nature and extent of her visibility in the public media, and with standing to protect her privacy interests. Therefore it is incumbent on this Court, exercising its parens patriae function to protect the child's privacy while facilitating public debate about the issues raised in this case. Whether or not this relief is sought on behalf of a particular child, it should be the policy of this Court to protect the privacy interests of children in parentage and custody disputes.
Placing Jaycee's identity in the media marketplace potentially exposes her to being singled out, commented upon, embarrassed, and pursued. Unlike a child actor, she receives no concomitant benefit from becoming a public figure.(15)
Moreover, at two years old, it is unlikely that Jaycee knows anything about how she came into the world. The circumstances of one's conception and birth are intensely private information. Rejection at birth can have serious psychological consequences. It cannot be in Jaycee's best interests for strangers to bring the story of her conception, birth and abandonment to her attention. The more her identity is disseminated, the more likely that she will overhear the comments of those around her, or be questioned about facts which come as a complete surprise to her. When, how and what to tell Jaycee as she grows up is best left to her family.(16)
CONCLUSION
The technology of her birth matters not at all to Jaycee. There can be no rational basis, much less a compelling state interest, for treating Jaycee's right to a legally recognized parent and child relationship differently from that of any other child. Parentage law exists to ensure that children enjoy the care, protection and support of parents. An interpretation of the law which defeats that purpose is abhorrent, and unconstitutional. The trial court's ruling violated Jaycee's substantive due process, equal protection and privacy rights under the California and U.S. Constitutions in the most fundamental and devastating way possible.
California parentage law is a squirrel's nest assemblage of statutes and precedent, developed and reinterpreted at different moments in history, different points of scientific capacity and to serve different, and shifting, social needs and concerns. It does not always function clearly and harmoniously. It must always be interpreted within the parameters of the U.S. Supreme Court's holdings defining which families, and which parent-child relationships are entitled to constitutional protection. However, all of California parentage law shares, as a primary goal, the protection of a child's relationship with her parents. A reading of that law which concludes that a child can be brought into the world without parents is a pinched and narrow construction, reached without appreciation of the public policies underlying parentage law.
The result is a new kind of illegitimacy. We thought that the Twentieth Century had abolished the stigma and legal disabilities of bastardy for all time. Instead, as we enter the new millennium, we find that the newest marriage of nature, science and human intent creates an excuse for abandoning the primary responsibility of our society. Neither California law, nor the U.S. Constitution can support such a result.
Children, and society as a whole, are not well served if persons can enter into arrangements which will result in the birth of a child while retaining the option to change their mind at some point during the pregnancy or after the birth. There can be no "changed circumstances" bail-out clause in parentage law. Once a child is conceived, parents cannot be permitted to disclaim responsibility because their marriage ends, the child has some disability, they don't like the child's gender, they are not sure about the color of the child's eyes, or they recognized at the last moment that they are unwilling to make the sacrifices necessary to care for a child. If the trial court's ruling is affirmed, it sends a message to Californians that they may procreate casually, and disaffirm responsibility for the resulting children for any reason whatsoever.
The genie is out of the bottle. All over the world, people are choosing methods of assisted conception and gestation to bring children into the world. The State has an obligation to protect those children. Given that the technology of assisted conception is here to stay, and that the variations are apt to be ever-expanding, public policy requires that it only be utilized by those who must take the ensuing responsibilities seriously. The trial court's ruling has sent the opposite message to society.
Amicus respectfully requests that this Court hear Jaycee's Petition, continue the stay of the trial court order terminating child support, and award temporary legal and physical custody of Jaycee to Luanne B., pending a decision in this matter. Amicus further requests that this Court protect the child's privacy by refusing to release identifying information.
RESPECTFULLY SUBMITTED,
LESLIE ELLEN SHEAR, CFLS(1)
Board Member, Association of Certified Family Law Specialists
Co-Chair Minors' Counsel Committee
Newsletter Editor Elect
LES:ndp
cc: Lorraine Gollub, ACFLS President
Leonard Weiler, ACFLS President-Elect
Stephen Temko, ACFLS Appellate Committee Chair
David Borges, ACFLS Newsletter Editor
Patricia P. Parson, ACFLS Administrator
1. See discussion below concerning the need to protect the child's privacy by not releasing identifying information.
2. The program was planned more than six months in advance. We re-worked it in the days before the presentation to organize the presentation around the facts in the Jaycee case.
3. One can envision a hospital refusing elective treatment because there is no one with authority to sign the consent forms.
4. Upon learning that the marital family no longer existed, Jaycee's gestational mother, Pamela, briefly sought parental rights. A stipulation of non-maternity was confirmed by the Court.
5. A quick search using AltaVista produced more than 3,000 possible links (some duplicates) on September 27, 1997. Other search engines identified some sites that Alta Vista did not find.
6. See Janet L. Dolgin, Defining the Family: Law Technology and Reproduction in an Uneasy Age (1997:New York University Press) for a thoughtful analysis of the role of contract doctrine in family law.
7. Intent may help identify which of the adults is motivated to undertake the responsibilities of parenthood.
8. In California, equitable estoppel confers parental status for purposes of child support upon a man who assumes the social role of father, allows the child to believe that he is the natural father for an extended period of time thereby preventing location and establishment of a relationship with the natural father. The policy (together with the marital presumption of Family Code §7540, and some of the rebuttable presumptions of the Uniform Parentage Act) precludes husbands from first raising the issue of paternity at the time of divorce. The element of detrimental reliance turns on the child's belief that the husband is her natural father. Clevenger v. Clevenger (1961) 189 Cal. App. 2d 658; Marriage of Valle (1975) 53 Cal App. 3rd 837.
9. Different approaches to determining the existence of a parent-child relationship can apply, depending upon what rights or responsibilities have motivated the litigation, and whether there is more than one possible legal father or mother. For example, a biological father will be compelled to pay child support based upon blood tests alone. If, however, the action is brought by a biological father who wants a relationship with his child, other factors come into play. Quillon v. Wolcott (1978) 434 U.S. 246; Caban v. Mohammed (1979) 441 U.S. 380, Lehr v. Robinson (1983) 463 U.S. 248, Michael H. v. Gerald D. (1989) 491 U.S. 110. Where there is another candidate who has established a marital relationship with the mother, a biological father seeking a relationship with his child does not always prevail. California courts generally have refused to extend the estoppel doctrine to cases in which a parent-like figure seeks relationship (custody and visitation) rights. Nancy S. v. Michele G. (1991) 228 Cal. App. 3rd 831; Curiale v. Reagan (1990) 222 Cal.App. 3d 1597.
10. Like the children in Clevenger and Valle, Jaycee will have no father if John is permitted to abandon her. Does it matter that he pulled out of the marriage before her birth given that she was conceived as the result of his choices, rather than in an adulterous relationship?
11. Motivations can include infertility, health problems which make pregnancy risky or impossible, the desire not to pass on genetic abnormalities, and the desire of single persons or same-sex couples to be parents. However, one can also envision the use of these technologies to avoid the inconvenience of pregnancy, commission children with particular genetic traits, select gender. or employ several surrogates so that an entire large family of potential is born at one time and can be raised collectively. Such motivations present different ethical questions.
12. Or enable, in the case of Luanne.
13. The distinction between news and entertainment in the United States has become blurred. As the murder of Jon-Benet Ramsey has taught us, the availability of images of an attractive child strongly influences the nature and extent of public attention. That attention is not always benign.
14. The recent death of Britain's Princess of Wales has sharply focused our attention on the risks attendant upon notoriety.
15. We are confident that this Court will find that Jaycee has a family.
Leslie Ellen Shear
16830 Ventura Boulevard, Suite 351
Encino, California 91436-1796