Reaffirming Human Dignity in Disputes over Children Born from Assisted Reproductive Technologies

79 Cat. Rptr. 2d 280 (Cal. Ct. App. 1998)

O'Hara Milena D. , and Vorzimer Andrew W. , Article. “In re Marriage of Buzzanca: Charting a New Destiny,” 26 W.St. U.L Rev. 25, 36 (1998/1999).

Id. at 26-27. O'Hara & Vorzimer claim to have successfully represented a gay couple in obtaining a judgment or paternity under Buzzanca. Id. at 36-37.

Hurwitz Ilana Article. “Collaborative Reproduction: Finding the Child in the Maze of Legal Motherhood,” 33 Conn. L. Rev. 127, 142-143 (2000). While acknowledging this advantage of intent theory. Hurwitz complains that it simultaneously creates legal inflexibility.

Johnson v. Calvert, 851 P.2d 776, 796-97 (1993) (Kennedy. J., dissenting).

In re Marriage of Moschetta, 30 Cal. Rptr, 2d 893, 894 (Cal. Ct. App. 1994).

Campbell Ardis L. Annotation J.D. , “Determination of Status or Natural Parents in Contested Surrogacy Births.” 77 A.L.R. 5th 567 (2001).

Yaworsky Michael J. , Annotation J.D. , “Rights and Obligations Resulting From Human Artificial Insemination.” 83 A.L.R. 4th 295(2001).

In re Baby M., 537 A.2d 1226, 1235 (1988).

Belisto v. Clark, 67 Ohio Misc. 2d 54, 63 (Ohio Ct. Common Pleas 1994). Note that some “intent” theories, infra Part IV, argue that ART births are not adoption, but that the “intended” parent is the natural parent and therefore the child is surrendered to its rightful parents.

A recent survey of U.S. surrogacy law is available at Campbell, supra n. 13.

The Declaration of Independence para. 1 (U.S. 1776). The word “dignity” itself does not appear, but the document's phrase “all Men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life. Liberty, and the Pursuit of Happiness” captures the essential concept.

United Nations Charter Preamble. The U.N. commits itself “to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women of nations large and small.”

Article 1 of the Declaration recognizes that “[a]ll human beings are born free and equal in dignity and human rights.” Additionally. Article 4 prohibits human slavery, and Article 7 holds all human persons equal before the law in light of equal protection.

Oscar Schachter, Comment: “Human Dignity as a Normative Concept.” 77 A.J.I.L., 848, 849 (1983).

Catechism of the Catholic Church (“CCC”), § 1930.

Nicholas Tonti-Fillippini. “The Concept of Human Dignity in the International Rights Instruments,” in The Identity and Status of the Human Embryo; Proceedings of the Third Assembly of the Pontifical Academy for Life, 388, 390 (Juan De Dios Vial Correa & Elio Sgreccia eds., Libreria Editrice Vaticana, 1999).

Schachter supra n. 21, at 849.

Id.; see also Paul John II Christifiedeles Laici (On the Vocation and the Mission of the Lay Faithful in the Church and in the World), (December 30, 1988) no. 37.

Id. at 851.

Tonti-Fillipini, supra n. 18, at 386.

Id.

Johnson Sara L. LL.B., Annotation. “Parent and Child” § 9, 59 Am Jur 2d 141.

Id. at 136.

Id. at 143.

CCC, supra n 22. § 1700: see also Paul John II Evangeliium Vitae no. 38.2.

Paul John II Veritatis Splendor (August 6, 1993), no. 92.1.

Paul John II Centesimus Annus (May 1, 1991) no 39.1.

CCC, supra n. 22. § 2378.

Centesimus Annus, supra n. 29, at 47.1.

Langston James Lesbians: We Made Our Baby Deaf on Purpose, available at http://www.thislondon.com/dynamic/news/story.himl?in_review_id=545846&in_review_text)id=5l1810.

Id.

Id.

The Catholic Church does support technologies which assist married couples in conjugal procreation, so long as the science does not violate human dignity. See Congregation for the Doctrine of the Faith. Instruction on Bioethics (Donum Vitae) (1987), II, B, 8; Rice Charles E. 50 Questions on the Natural Low: What It Is and Why We Need It (Ignatius Press, 1993) 381.

CCC, supra n. 22. § 2376, citing Instruction on Bioethics II, 1

Id. § 2377, citing Instruction on Bioethics II, 5.

Paul John II Address (December 14, 1990). Position Paper 215 (Nov. 1991), 323-26; see also Rice, supra n.40, 316-317.

CCC, supra n. 22 § 2363.

Instruction on Bioethics, supra n.40, I, 6.

Id.

Rice Charles E. The Winning Side: Questions on Winning the Culture of Life (1999) 253.

CCC, supra n. 22. § 2414; see also John Paul II, Veritatius Splendor no. 100.

Noble-Allgire Alice N. Article, “Switched at the Fertility Clinic: Determining Maternal Rights When a Child is Bom From Stolen or Misdelivered Genetic Material”. 64 Mo. L Rev. 517, 588 (1999).

See Johnson supra n. 24, at 137.

Id. at 135

Id. at 156.

812 F.2d 1239 (9th Cir. 1987); See also U.S. v. Boos, 127 F.3d 1207 (9th Cir. 1997); U.S. v. Sherman, 268 F.3d 539 (7th Cir. 2001).

Id. at 1245.

Matter of Baby M., 547 A.2d 1227, 462-63 (1983).

Supra n.7.

Id. As Belisto v. Clark pointed out, however, “the framers of those laws did not intend for the law to result in two mothers.” Belisto, infra n.63, at 60.

Id. at 782.

See generally Hill John Lawrence Article, “What Does It Mean to he a ‘Parent’? The Claims of Biology as the Basis for Parental Rights,” 66 N.Y.U.L. Rev. 353, 389–90 (1991).

See generally Shultz Marjorie Maguire Article, “Reproductive Technology and Intent-Based Parenthood: An Opportunity for Gender Neutrality,” (1990) Wis. L. Rev. 297: and Marjorie Maguire Shultz, Note, Redefining Mother: A Legal Matrix for New Reproductive Technologies, 396 Yale L.J. 187 (1986).

Johnson, supra n.6, at 782, quoting Hill, supra n.62, at 415.

Id. at 783, quoting Shultz, supra n.54, 96 Yale L.J. at 196.

Id. at 782-83, quoting Shultz supra n.54, (1990) Wis. L. Rev. at 323.

Hill supra n54, at 415-16.

Coleman Malina Article. “Gestation, Intent and the Seed: Defining Motherhood in the Era of Assisted Human reproduction,” 17 Cardozo L. Rev. 496, 524 (1996).

Johnson, supra n.6, at 783, quoting Shultz, supra n.63, 96 Yale L.J. at 397.

Schiff Anne Reichman Article. “Solomonic Decisions in Egg Donation: Unscrambling the Conundrum of Legal Maternity.” 80 Iowa L. Rev. 265, 281 (1995).

Johnson, supra n.6, at 783.

Kennard ultimately advocated a “best interests of the child standard to determine natural paternity in ART cases. Id. at 799-800.

Id.

Johnson, supra n.6, at 796, quoting Hughes. “The Philosophy of Intellectual Property,” 77 Geo. L.J. 287, 330 (1988).

Id. at 796-97.

Noble-Allgire supra n.44, at 562.

Garrison Marsha Article. “Law Making for Baby Making: An Interpretive Approach to the Determination of Legal Parentage.” 113 Harv. L. Rev. 835, 863-65 (2000).

Holmes Oliver Wendell The Path of the Law,” 10 Harv. L. Rev., 457 (1897).

A potential risk involved in allowing a damage suit is that, if the damages were large enough, the contracting couple might offer to drop the suit in exchange for delivery of the child. In such instances, courts should he wary of allowing either type of suit, since the “settlement offer” might amount to blackmail.

Garrison supra n. 69, at 861-63.

Johnson, supra n.7, at 798.

Mitchell Waldman J.D. Annotation: “Adoption.” 2 Am Jur 2d 857, 872–73.

O'Hara & Vorzimer, supra n.4, at 35-36.

Hurwitz supra n.5, at 143.

Sec generally Huddleston v. Infertility Ctr. of America, Inc., 700 A.2d 453 (Pa. Super. 1997).

Johnson, supra n.24, at 146-47: “It is the right and duty of parents under the law of nature as well as the common law and the statutes of many slates to protect their children, to care for them in sickness and in health, and to do whatever may be necessary for their care, maintenance, and preservation… An omission to discharge this duty is a public wrong which the state, under its police powers, may prevent.”

See also People v. Sorenson, 68 Cal. 2d 280 (holding a father criminally liable for failing to pay child support to a child born to his wife from an anonymous sperm donation).

See Karin T. v. Michael T., 484 N.Y.S. 2d 780 (N.Y. Fam. Ct. 1995) (holding that a lesbian who changed her identity to male was the marital father of a partner's children born through artificial insemination).

Buzzanca, supra n.2, at 285-86.

Id. at 288.

Id. at 291.

Brill Lara A. Article. “When Will the Law Catch Up with Technology: Jaycee B. v. Superior Court of Orange County: An Urgent Cry for Legislation on Gestational Surrogacy.” 39 Catholic Law. 241, 263-64 (1999): see also Golnar Modjtahedi. Note and Comment: “Nobody's Child: Enforcing Surrogacy Contracts.” 20 Whittier L. Rev. 243, 268-69 (1998).

Waldman supra n. 85, at 929-932.

Johnson, supra n.6, at 783, quoting Shultz, supra n.63, 96 Yale L.J. at 397.

48 Hours. “Who's My Mommy?” (CBS television broadcast. Aug. 17, 2001).

Modjtahedi supra n.84, at 269.

Jaycee was born April 26, 1995; see Jaycee 8. v. Superior Ct., Cal. App. 4th 718, 723: the appeal, in In re Buzzanca, was decided almost three years later.

Dolgin Janet L. Article. “Choice. Tradition, and the New Genetics: The Fragmentation of the Ideology of the Family.” 32 Conn L. Rev. 523, 541-42 (2000).

Rao Radhika Article. “Assisted Reproduction Technology and the Threat to the Traditional Family.” 47 Hastings L.J, 951, 958-59 (1996).

Id. at 962-63.

Id. at 963-64.

Id. at 964.

Id. at 965-66.

Id. at 961-62.

Hurwitz supra n.6, at 142-43.

See, e.g., McCully Melanie G. Article, “The Male Abortion: The Putative Father's Right to Terminate His Interests and Obligations to the Unborn Child.” 7 J.L. & Po'y 1 (1998).

164 Cal. Rptr.618 (Cal. Ct. App. 1980).

Brill supra n. 108, at 264-65; see also Hill, supra n.62, at 417.

Id. at 263-64.

Hurwitz supra n.6, at 143.

Modjtahedi supra n.84, at 257.

Hurwitz supra n.5, at 148.

Modjtahedi supra n.84, at 259.

Id. at 279.

Id. at 274; see also Dolgin supra n. 10, at 1273.

Supra n. 15, at 62.

Jackson Vicki C. Article, “Baby M, and the Question of Parenthood.” 76 Geo L.J. 1811, 1814 (1988); see also Hurwitz, supra n.6, at 146-47.

Id.

Dolgin supra n. 10, at 1294.

Jackson supra n. 134, at 1818-19.

Setoff supra n.62, at 278.

Roosevelt Kermit III Article. “The Newest Property: Reproductive Technologies and the Concept of Parenthood.” 39 Santo Clara L. Rev. 79, 80-81 (1998). Roosevelt explicitly rejects intent theory. Id. at 91-92, but does intermingle his property theory with contract law and so is appropriately mentioned here. He later notes that “[I]ntention may and should, be the animating spirit of our conception of parenthood.” Id. at 94.

Id. at 88.

Id. at 81.

Id. at 81.

Id. at 80-81.

See, e.g., Schiff supra n.62, at 267.

Cf. In re Estate of Gardinier, 42 P.3d 120 (Kan. 2002) (holding that a male-to-female transsexual was not a female within the meaning of a Kansas marriage statute); William Saletan, in Of Marriage and Mutable Gender (March 21, 2002), available at http://www.msnbc.com/news/727503asp. remarks that “[t]he court… refused to give up the crazy notion that a birth certificate is supposed to certify what actually happened.”

George Orwell, 1984, 205 (Penguin Books 1981) (1950).

Dolgin supra n. 226, at 1295.

Dolgin Janet L. Article. “Suffer the Children: Nostalgia, Contradiction and the New Reproductive Technologies.” 28 Ariz. St. L.J. 473, 538 (1996); see also Jerald V. Hale, “From Baby M. to Jaycee B.: Fathers, Mothers, and Children in the Brave New-World,” 24 J. Contemp. L. 335, 367 (1998). Hale does endorse a limited intent theory in conjunction with several other factors, Id. at 371.

Garrison supra n. 69, at 865.