Developments and Advances in Fertility Sciences Often “Cloud” the Issue as to Parentage

ROBERT B., Plaintiff and Respondent, DENISE B., Plaintiff and Appellant, v. SUSAN B., Defendant and Appellant. H024926. COURT OF APPEAL OF CALIFORNIA, SIXTH APPELLATE DISTRICT
2003 Cal. App. LEXIS 873

June 13, 2003, Filed

Developments and advances in fertility sciences often “cloud” the issue as to parentage from a legal standpoint. The recent case of Robert B. and Denise B. v. Susan B. { WE DO NOT HAVE THE CITE YET} deals with the interplay of law and science.

Robert B. and Denise B a married couple contracted with a fertility clinic. Pursuant to that contract Robert and Denise obtained from an anonymous donor an egg for fertilization by Robert’s sperm. The embryos were implanted into Denise and she would then, presumably give birth. Any remaining embryos were to be frozen and stored for the couples exclusive use.

Susan B., (an unrelated third party), also contracted with the same fertility clinic for anonymous genetic material (ovum and sperm) to be implanted in Susan for her pregnancy. It was Susan’s intent that the donors would have no parental/paternity rights with reference to any resulting child.

However, the fertility clinic inadvertently mixed up some of the eggs fertilized by Robert and used same in Susan’s anonymous procedure. This “inadvertent” implantation eventually resulted in the birth of Daniel.

Robert and Denise filed a paternity action regarding Daniel. The trial court dismissed Denise from the action for lack of standing. The court also determined that Robert was Daniel’s father. Both Susan and Denise appealed from the trial court’s ruling. The appellate court affirmed both decisions of the trial court.

In affirming Robert’s claim that he is in fact the biological parent of Daniel, the Appellate Court relied on Family Code Section 7630(c). The Code states that:

“An action to determine the existence of a father and child relationship … may be brought by … a man alleged or alleging himself to be the father …”

It was very clear that Robert was the biological father of Daniel. However, Susan contended that the court should liberally interpret Family Code Section 7613(b) which states:

“The donor of semen provided to a licensed physician … for use in artificial insemination of a woman, other than the donor’s wife, is treated in law as if he was not the natural father of a child thereby conceived.”

The court rejected Susan’s position summarily. In reference to the non application of Family Code Section 7613(b) the court stated,

“It is uncontested that Robert did not provide the semen for purpose of inseminating any one other than Denise.”

The court has previously not given Family Code Section 7613(b) a liberal or expansive interpretation in the case of Jordan C. v. Mary K. (1986) 179 Cal.App.3d 386, 224 Cal.Rptr. 530. In that case, Mary K. and her friend Victoria obtained Jordan C.’s semen for an artificial insemination of Mary K. No licensed physician was involved in the artificial insemination and in fact the insemination was facilitated by some medical training that Mary K. had in light of the fact that she was a nurse. The court found that the limitations on parentage found in Family Code Section 7613(b) did not apply to Jordan C. in light of the fact that no licensed physician was involved in the artificial insemination process and as such, the preclusion of parentage did not apply. This case has been referred to as the “turkey baster or unofficial artificial inseminator exception” case

Susan B. also made the argument that finding parentage on Roberts’ part would undermine the “integrity of her single parent family unit”. Her contention was actually similar to the one that Mary K. asserted in Jordan C. v. Mary K. In that case it was argued that a ruling of parentage on Jordan C’s part would undermine the “family autonomy” that Mary K. and her friend Victoria had established.

The court in Jordan C. denied Mary’s contention by asserting that Mary was essentially putting the cart before the horse because the court had to determine what constituted the minor’s “family” in the legal/biological sense of the term before the court could address the issue of family autonomy.

In Robert B. v. Susan B., the court stated that Susan’s concern about the autonomy of single parent families would be more appropriately addressed by the legislature as opposed to the courts.

The court also affirmed the dismissal with prejudice of Denise B. as an interested party in the action. The court determined that Denise B., although married to Robert, had no biological connection whatsoever to the minor Daniel.

Denise asserted that the court should extend the ruling of Marriage of Buzzanca (1998) 61 Cal.App.4th 1410. In that case, husband and wife obtained the services of a surrogate to gestate a child who was not biologically connected to either party. Prior to the minor’s birth a divorce action commenced and husband contended that there was in fact no children of the marriage and as such, he should not be liable or responsible for child support. The trial court agreed with husband. The matter was taken up on appeal by wife and reversed. The appellate court determined that “but for” the surrogate contract that husband and wife had entered into the minor child would not have been born into the marriage.

Denise was arguing that the intention of her and Robert was that any children born from any eggs fertilized by Robert were intended to be exclusively the children of Robert and Denise. The trial court was not persuaded by this argument. Neither was the appellate court.

The appellate court stated that,

“It is not necessary to discuss the Buzzanca court’s comparison of a surrogacy contract to husband’s consent to artificial insemination of his wife. We need only observe that the case before us is completely distinguishable. Susan did not agree to be a surrogate under a contract with the Denise; … We decline Denise’s implied invitation to extend Buzzanca to a situation that (1) a woman has no genetic or gestational relationship to the child, (2) there is no status comparable to that of a presumed father …, and (3) another woman does assert a legally recognizable claim. … It is undisputed that Denise has no factual basis under which to claim the status of a presumed
mother.”

As such, the appellate court found that the trial court was correct in determining that Robert was Daniel’s father and that Susan was Daniel’s mother.

As surrogacy and paternity clinics further develop in California, we can expect more cases determining and delineating the parent-child relationship. As Family Code Section 7570 clearly states,

“There is a compelling interest in establishing paternity for all children.”

The only caveat may be that it is not a straight forward determination.