ASRM Legally Speaking

A series of recent, and arguably inconsistent, verdicts point out the role evidence of intent, including consent forms and agreements, as well as a state’ s statutory laws all play in determining parentage of children born through collaborative or third party reproduction. -- S.L.Crockin

Lesbian Partner’s Maternity Disputed Under “Intent” Based Parentage Order

In a case with potentially wide-ranging implications, a former lesbian partner’s maternity of a two-year-old child conceived by her former partner through artificial insemination is under dispute. They had obtained a pre-birth order that both would be the child’s mothers, as well as a birth certificate reflecting their joint parental status and jointly raising the child for two years prior to separating. The facts are undisputed. At issue is the sufficiency of the legal steps they took to secure their joint parentage. The appellate court has voided their prior order, but allowed the non-biological parent an opportunity to establish parentage under California’s family law code in a case involving disputed custody and visitation following the couple’s break-up.

While still together and pregnant, the couple secured a pre-birth order of joint maternity based on a “stipulation” or agreement. They did not present any other evidence to the court nor did they subsequently undergo a co-parent adoption. After separating, the biological mother challenged the pre-birth order she and her former partner had obtained, arguing the court lacked jurisdiction to render such a judgment based on the parties’ agreement. The appellate court agreed, and rejected any notion that parentage can be established simply by agreement or intention, separate from following established statutory law. Despite arguments submitted from multiple “amici” (“friend of the court” briefs) that hundreds, if not thousands, of parentage cases had been processed and allowed based on intention and that prior case law including In re Marriage of Buzzanca, the court found that intention alone did not suffice to create parentage.

However, the court ruled that a gender-neutral application of California’s Uniform Parentage Act provided a basis to establish legal parentage of a non-biological parent — by demonstrating that she had held herself out as a parent and received the child into her home. The court rejected the biological mother’s argument that permitting such evidence would invade an intact family unit, finding that the family unit had allegedly been comprised of both the women and the child. The case has been remanded to the trial court for a hearing on the facts.
Kristine H. v. Lisa R., 120 Cal.App.4th 143 (2d Dis.)(6/30/04)

California Court of Appeals Affirms Former Lesbian Partner’s Egg Donor Status

A California Court of Appeals has affirmed a lower court ruling that a lesbian woman who provided her eggs for in vitro fertilization and implantation in her former partner has no maternity rights to the resulting twin children. After the birth of the twins, both women jointly assumed parental responsibilities for about five years before the couple separated, after which K.M. sought to establish her maternity in court.

At trial, the parties presented sharply conflicting evidence regarding their intentions prior to the IVF procedure. K.M asserted that she and E.G. intended and agreed to both be parents and that she signed the hospital’s donor ovum form within minutes of receiving it and believed it was a “pro forma” document required to go to retrieval. E.G. claimed that they had agreed that she would be the sole parent of the children, with a possibility of initiating co-parent adoption proceedings five years after their birth. At the time of the egg retrieval, IVF, and embryo transfer, the couple signed standard consent forms as an ovum donor and an ovum recipient that were provided to them by the medical clinic and that stated that K.M. was an egg donor, not a mother. Hospital records at the time of birth, as well as later school records, referred to both women as mothers or parents. However, both women testified that they never revealed to friends, family, or the children’s pediatrician that K.M. was genetically related to the twins.

The Court of Appeals found that the “ultimate determination of natural motherhood depends not upon the existence of a binding contract, but rather, as Johnson [v. Calvert] instructs, upon the woman’s intention to bring about the birth of the child to raise as her own.” The appellate court therefore relied on and affirmed the trial court’s finding that the parties’ intended that only E.G. raise the children as her own. The trial court also found the evidence to be clear and convincing that K.M. signed the clinic’s consent form, including the waiver of parental rights, knowingly, voluntarily, and intelligently. The court declined to answer the question of whether the clinic’s consent form was a binding contract, but rather looked at the form as a reflection of the intention of the parties. The appellate court rejected the argument that the parties’ subsequent actions in jointly raising the children impacted the determination of parenthood, finding that intent to parent should not be assessed and reassessed over time. The court also ruled that, “[f]unctioning as a parent does not bestow legal status as a parent.” Both courts acknowledged “the harsh consequences of this decision for the children in this case, who will suffer significantly…,” but stated that California law did not permit a determination of parentage based on the best interest of the child.
K.M. v. E.G., 118 Cal.App.4th 477 (1st Dis.)(5/10/04).

Pennsylvania Sperm Donor Ordered to Pay Child Support as Legal Father

A Pennsylvania appellate court has ordered a man to pay child support as the legal father of twins born using sperm he provided to a then married woman, Ivonne Ferguson.

According to the man, Joel McKiernan, following the end of their two-year affair, he agreed to act as an anonymous sperm donor after Ms. Ferguson assured him she would be a single mother and he would have no financial or moral obligations to any resulting child. The court found that while the oral agreement constituted a valid legal contract on its face and the woman’s behavior “despicable,” it nonetheless found the contract unenforceable based on “legal, equitable and moral principles.” The court rejected the argument that Ms. Ferguson’s former husband, who filed for divorce the day of her IVF procedure and was divorced at the time of the births, was the children’s legal father, notwithstanding any presumption of paternity or that Ms. Ferguson had placed his name on the children’s birth certificates. The court further found that the contract was not enforceable because it bargained away a legal right belonging to the children. The appellate court agreed with the trial court that “[a]lthough we find [Ms. Ferguson’s] actions despicable and give [Mr. McKiernan] a sympathetic hue, it is the interest of the children we hold most dear.” Media reports indicate that Mr. McKiernan may appeal.
Ferguson v. McKiernan, No. 1430 MDA 2003 (Pa.Super.Ct. 7/22/04). CNN.com, July 24, 2004.

Sperm Donor Not Father Under Washington State’s DI Statute

Under a strict interpretation of that state’s artificial insemination statute, the Washington Court of Appeals denied a mother’s paternity. The donor, who was married to someone else, and mother had been in an ongoing relationship for several years, during which he agreed to provide the mother’s physician with semen for her insemination. Two children were born – the first while the couple was together and the second allegedly without the donor’s knowledge of the insemination and after their relationship had ended. For the first child, the donor provided some financial support, signed a paternity affidavit after the birth, maintained regular contact, and purchased a life insurance policy naming the child as the beneficiary. After ending their relationship, the donor stopped providing support. Thereafter, the mother filed a paternity action seeking to establish him as the father of both children and obtain child support for both children.

The former Washington statute, in place at the time of the inseminations at issue, provided that when a donor provides semen to a physician for insemination of a woman, the donor is not the child’s father unless the donor and mother agree in a writing that the donor shall be the father. The statute further required the agreement to be signed by the woman and donor, certified by the physician, and filed with the registrar of vital statistics. The appellate court determined that because the requirements of the statute were not complied with, and notwithstanding the other steps the man had taken to acknowledge paternity, including signing a paternity affidavit and paying child support for the older child, he was not the legal father of either of the children and had no obligation to pay child support. A further appeal is possible.
In the Matter of the Parentage of J.M.K. and D.R.K. (Brock v. Kepl), 89 P.3d 309 (Wa.Ct. of App. May 4, 2004).

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