Man Ordered to Pay Support for Girl Born to Surrogate

In a legal case that underscores the complex issue of parental authority in surrogate contracts, a state appeals court decided that a man must pay child support for a girl born to a surrogate mother after he and his wife divorced.

The man argued that he should not have to pay child support to his ex-wife because it never was legally established that he was the baby’s adoptive father.

The Court of Appeal in Santa Ana, which had handled two previous groundbreaking surrogacy cases, called the facts of the latest case “the most extraordinary to date.” Acknowledging that the issues delve more deeply into largely uncharted legal waters, the appeals court urged the Legislature to regulate surrogacy contracts.

The unusual case involves a couple who sought out a surrogate mother to conceive a baby using anonymous donations of egg and sperm. The result was a baby identified in court papers only as Jaycee B., now 9 months old.

The husband who signed the surrogacy contract with his wife later filed for divorce, in March 1995, a month before the baby was born. The wife claimed the baby and later went to family court seeking child support from her ex-husband.

The ex-husband, identified only as John B., refused to pay temporary support because he said it never was established that he was the adoptive father.

John B. admitted that he signed the surrogacy contract, but said that does not mean he should be responsible for the child produced with the help of strangers. He further argued that until it was established that he was the father, no family law court could order him to pay child support.

Because nobody knows who the biological donors are and the surrogate mother and her husband laid no claim to the baby, the court had to decide whether it was necessary for the ex-wife, known as Luanne B., to prove that her ex-husband was the child’s father before she could obtain an order forcing him to pay child support.

The appeals court, realizing that the ex-wife probably could not get her former husband to agree that he was the baby’s father, nevertheless determined that the family court had jurisdiction to hear the matter.

“We need not--and do not--decide at this juncture whether the child is legally the husband’s daughter,” wrote Presiding Justice David G. Sills, who was joined in the opinion by justices Thomas Crosby and Edward Wallin. “It is enough to hold that the wife has made a sufficient showing that the child will be [his daughter] when the question is ultimately settled.”

The justices said they felt the need to move with “extreme urgency” because of concerns about the baby’s welfare. They held that the signed surrogacy contract was sufficient to show by a preponderance of the evidence that Jaycee was John’s daughter and that he should pay child support, noting that stronger evidence probably would be needed to conclusively prove parenthood. The decision returns the case to Orange County’s family law court, where the child support payments will be arranged.

Attorneys in the case differed on the opinion but agreed that such contracts need to be regulated.

“The signature on this contract set in motion the creation of Jaycee,” said Jeffrey W. Doeringer of Huntington Beach, who was appointed independent counsel for the baby when the case first landed in Orange County Superior Court.

“But for the act of entering into this contract and setting this in motion, my client would not have been created,” he said.

On the other side is Thomas P. Stabile, an attorney for John B., who said he cannot understand how the justices came to their decision. “Here, the mother is not biologically related to the child,” he said. “The dad is not. There is not an adoption or a petition filed for adoption.”

Times staff writer H.G. Reza contributed to this story.