Metropolitan News-Enterprise


Tuesday, June 17, 2003


Page 1


C.A. Rejects Maternal Rights Claim Arising From Clinic Mixup

Sixth District Panel Says Woman Whose Embryos Were Mistakenly Implanted in Someone Else Lacks Standing


By KENNETH OFGANG, Staff Writer/Appellate Courts


A woman who, along with her husband, donated genetic material that led to the birth of a child to another woman as the apparent result of a fertility clinic’s mistake is not the child’s legal mother, the Sixth District Court of Appeal has ruled.

The court Friday affirmed a Santa Clara Superior Court judge’s ruling that a 2-year-old child identified as Daniel B.—none of the persons involved in the case were identified by surname—is the son of his birth mother, Susan B., and of Robert B., but not of Robert B.’s wife Denise.

In doing so, the court rejected appeals by both women. Susan B. argued that Robert B. was a mere sperm donor not entitled to parent status, while Denise B—who gave birth to Daniel’s genetic sister 10 days after he was born—argued that she was the “intended mother” of Daniel.

The complex dispute, Justice Franklin Elia explained, grew out of a “mistake” by a fertility clinic through which Robert and Denise B. contracted to have an anonymous ovum donor’s eggs fertilized with Robert B.’s sperm. The contract declared that Robert and Denise B. would be the parents of any children produced from the resulting embryos.

Same Clinic

Susan B., a single woman, went to the same clinic, seeking to purchase genetic material from “two strangers who would contractually sign away their rights” so that “there would be no paternity case against her, ever.” Her contract provided that she would receive an embryo created from anonymously donated ova and sperm.

About 13 embryos were produced for the couple, some of which were implanted in Denise B.’s uterus. It was not until 10 months after she gave birth to her daughter that Denise B. learned that the clinic had “inadvertently” implanted some of her embryos in Susan B.’s uterus and that her daughter had a brother.

Susan B., after meeting with the couple, decided not to relinquish custody, leading Robert and Denise B. to file a parentage action. After genetic testing, the judge ruled that Robert B. was Daniel’s father, that Denise B. lacked standing because she was not biologically related to the boy, and that Susan B. should have temporary custody, with Robert B. having visitation rights.

The custody and visitation issues were not before the court in the appeal ruled on Friday.

Elia said that Susan B. could not preclude Robert B. from being the child’s legal father because of Family Code Sec. 7613(b). The statute provides that when a doctor oversees the procedure, a “donor of treated in law as if he were not the natural father of a child thereby conceived.”

Justice’s Reasoning

Robert B. is not a donor, within the meaning of the statute, because he had no intent of inseminating anyone other than his wife, Elia explained. He therefore is entitled by statute to a judgment declaring himself the father, the justice said, making it unnecessary to resolve various constitutional claims.

The jurist said it was unnecessary to resolve Denise B.’s claim that her child would be denied his “constitutional right to...a stable, permanent placement” if Robert B. were allowed paternal rights. That issue can be taken up if and when Robert B. asks for custody, Elia said.

As for Denise B.’s appeal, the justice wrote, the trial judge ruled correctly that she lacked standing. California courts, he said, “have refused to recognize a biologically unrelated woman as an ‘interested person’ [who may seek maternal rights] under [Family Code] section 7650.”

The case is Robert B. v. Susan B., 03 S.O.S. 3126.


Copyright 2003, Metropolitan News Company