Published by Vorzimer, Masserman & Ecoff
RECENT RULING COMPLICATES
ARRANGEMENTS USING DONOR OOCYTES
A recent decision by an Orange County, California Superior Court Judge has decimated a family and has raised serious legal questions as to the legal status of parties to contracts utilizing donor gametes.
The case, which originally attracted international attention more than one year ago, involved the birth of a baby girl, Jaycee, created through donor sperm and a donor egg, and gestated by a Surrogate. Prior to the birth of Jaycee, the Intended Parents separated and the Intended Father sought to rescind his obligations under the surrogacy contract. The intended Mother sought both custody and support from her ex-husband. In its groundbreaking 1996 initial opinion, the California Court of Appeal determined that sufficient evidence existed to conclude that the Intended Father would be the legal father of Jaycee and returned the file to the Orange County Superior Court for further rulings.
Judge Monarch of the Superior Court, in apparently disregarding the reasoning of the higher court, recently concluded that the Intended Father has no further support obligation to the now two-year old girl. The ruling, handed down months ago, only became public as a result of an appeal filed by Jaycee's attorney. It is significant to note that the lower court's ruling deals solely with the Intended Father's financial responsibilities. While the Surrogate initially sought custody of the non-biological child she delivered, such claim appears to have been motivated solely by her discouragement upon learning of the Intended Parents divorce proceedings. Consequently, the Orange County Superior Court was not addressing the enforceability of the surrogate contract or the legal rights under any gamete donation contract.
Unfortunately, yet another aberrational case has caused a further blemish to the field of collaborative reproduction. Among the myths disseminated following this ruling is the fact that Jaycee remains "parentless." Nothing could be further from the truth as Jaycee remains with her Intended Mother. Instead, the lower court held that in order for Jaycee's mother to finalize her parental rights, she must undertake an adoption of her child.
The adoption prerequisite is not in harmony with current California law, but also raises serious constitutional questions. Under current California law and practice, no formalized legal proceedings are necessary to finalize parental rights of recipients of donor gametes. In particular, a married couple who utilizes donor sperm are not obligated to finalize their parental rights as they are considered to be the resulting child's legal parents. Yet, taken to its logical conclusion, Judge Monarch's ruling would require a recipient of a donor oocyte to adopt her child. Such a ruling would clearly violate the United States Constitution Equal Protection clause, requiring that similarly situated individuals be treated equally. To treat recipients of donor oocyte differently than recipients of donor sperm, would be to engage in the most basic form of gender discrimination. Sadly, from all appearances, this fundamental constitutional challenge was either not raised by the Intended Mother and Jaycee's attorneys, or was ignored by the Court.***
Boding well for proponents of assisted reproduction is the appellate panel set to hear the appeal was the same panel which issued the first ruling in this extraordinary case, and perhaps even more significantly, was the same group of justices who issued the landmark decision in Calvert v. Johnson. If allowed to stand, Judge Monarch's ruling will not, for the time being, likely impact the manner in which parental rights are finalized, except for cases in which the child is a product of both sperm and egg donation. More problematic is if the Court of Appeal upholds Judge Monarch's ruling. Such a decision would not only affect cases similar to Jaycee B., but arguably require a step-parent adoption in any case in which donor eggs are used.
The ruling in this case highlights the desperate need for a dialogue on the ethical issues involved in assisted reproduction, including using embryos created by both sperm and oocyte donation. In this same context, it is important for professionals in the field of A.R.T. to reassess their own ethics and values in advising patients on the advantages and disadvantages of assisted reproduction. It is also incumbent upon our industry in general to ensure that patients have access to professionals who are trained in the complexities of A.R.T. and whose motivations are free from ulterior purposes. The long term impact of the Jaycee B. case will likely be minimal as it ultimately involved child support issues. However, bad cases make bad laws and if there is any lesson to be learned from this case, it is that the media has an insatiable appetite for sensational stories that fuels misunderstanding and ultimately cause legislatures to restrict access to ART.
***Editor's Note: Since this article was originally published, the briefs filed with the California Court of Appeal were made public. As originally suspected, the brief filed by the attorney for the minor, Jaycee, failed to raise the constitutional equal protection argument. Fortunately, an Amicus Curiae brief filed by the Association of Certified Family Law Specialists addressed this most critical and fundamental argument.
Return to Index of the Journal of Assisted Reproductive Law
Last Updated: October 13, 1997
((c) 1997 By Vorzimer, Masserman & Ecoff. All rights
reserved. No part of this publication may be used commercially or
reproduced without prior written permission of Vorzimer, Masserman &
Ecoff. The Journal is published as a service to the Assisted Reproductive
Technology community. The articles are summaries of the law and are not
intended to be used in lieu of legal advice. The authors will, on request,
be pleased to discuss their articles in greater detail.
Number of visitors to this page since
March 22, 1997:
To Send us E-Mail 
Return to Home Page