Man Told to Pay Support for Child Born to Surrogate

In a legal case that underscores the complex issue of parental authority in surrogate contracts, a state appeals court decided a man should pay child support for a baby 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 was never legally established that he was the baby’s father.

The state Court of Appeal in Santa Ana, which previously handled two other 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 state Legislature to regulate surrogacy contracts.

The unusual case involves a couple who sought out a surrogate mother to conceive a child using anonymous donations of egg and sperm. The result was a baby identified in court papers only as “Jaycee B.,’ now 9 1/2 months old. In March 1995, a month before the baby was born, the husband who signed the surrogacy contract with his wife filed for divorce. The wife claimed the baby and later went to family court seeking child support from her ex-husband.

The man, identified only as “John B.,” refused to pay temporary child support because he contends it had never been established that he was the child’s adoptive father.

John B. admitted he signed the surrogacy contract but says that doesn’t mean he should be responsible for the child produced with the help of strangers. He further argued in fighting the case in court 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 the ex-wife could probably never 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 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 would probably be needed to conclusively prove parenthood.

The appeals court decision returns the case to Orange County’s family law court, where the child-support payments will be arranged.

“Our ruling today is an extremely narrow one: We merely hold that the fact John signed the surrogacy agreement in the circumstances of the case is enough to give the family court jurisdiction to hear the order to show cause.”

Attorneys in the case differed on the opinion but agreed that contracts need to be regulated in this still-controversial field of child-bearing and parental responsibility.

“The signature on this contract set in motion the creation of Jaycee,” said Jeffrey W. Doeringer, a Huntington Beach attorney 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. “But she has been created, and it’s a little late to be backing out now.”

Doeringer praised the decision and said it opens up the way for family law court to maintain jurisdiction not just over those who are conceived by their own parents or adopted, but “those created by parties through contracts which are now technically possible.”

But Thomas P. Stabile, an attorney for John B., said he cannot understand how the justices came to their decision.

Unlike paternity cases, where a case can be made fairly easily as to who might be the father, this situation is different, Stabile said.

“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. What is the jurisdictional basis for the family law court to make [a child-support] award?”

Stabile said the recent case could be just the first of many similar disputes as the world of surrogacy law expands.

“My suspicion is that there are lots of contracts like this one,” he said. “Something has to be done because science is jumping ahead and the law is slow in keeping up.”

The 4th District Court of Appeal waded into major surrogacy cases twice before.

In 1991, justices upheld a precedent-setting verdict against Anna Johnson, who bore a child for an infertile couple.

Mark and Crispina Calvert won a landmark California Supreme Court decision in 1993 that gave them custody of a baby boy born to a surrogate mother. The court decision ended a bitter three-year custody battle between the Tustin couple and Johnson, who gave birth to Christopher Michael Calvert.

The child was conceived in vitro from the Calverts’ sperm and egg at the UCI fertility clinic, and the resulting embryo was placed in Johnson’s uterus. The couple had agreed to pay Johnson $10,000 to carry the child to term and give them custody of him at birth.

However, Johnson sued for custody of Christopher in 1990, alleging breach of contract by the Calverts, and the couple countersued. The issue was settled three years later in the state Supreme Court, which ruled that the Calverts were Christopher’s legal parents. Johnson appealed to the U.S. Supreme Court, which refused to review the case.

In 1994, the appeals court reaffirmed a surrogate mother’s parental rights in another case, but ordered a lower court to decide who gets primary custody of a 4-year-old girl named Marissa, whose surrogate mother and biological father were granted joint custody. Last year, an Orange County Superior Court judge awarded primary custody to the man after determining the child would be better off with her father.

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