Alexandria S. v. Pacific Fertility Medical Center, Inc.

• Decision Date: 21 May 1997
• Docket Number: No. A073452,A073452
• Citation: 55 Cal.App.4th 110,64 Cal.Rptr.2d 23
• Parties: , 97 Cal. Daily Op. Serv. 3878, 97 Daily Journal D.A.R. 6527 ALEXANDRIA S., a Minor, etc., Plaintiff and Appellant, v. PACIFIC FERTILITY MEDICAL CENTER, INC., et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

Page 23

64 Cal.Rptr.2d 23

55 Cal.App.4th 110, 97 Cal. Daily Op. Serv. 3878,

97 Daily Journal D.A.R. 6527

ALEXANDRIA S., a Minor, etc., Plaintiff and Appellant, v. PACIFIC FERTILITY MEDICAL CENTER, INC., et al., Defendants and Respondents.

No. A073452.

Court of Appeal, First District, Division 2, California.

May 21, 1997.

Certified for Partial Publication. ^*

Review Denied July 30, 1997.

P. Michael Pekin, Guy O. Kornblum, San Francisco, Randy A. Moss, Los Angeles, Linda B. Oliver, San Francisco, The Kornblum Law Offices, for plaintiff and appellant.

Robert T. Lynch, Paul W. Thorndal, Lynch, Loofbourrow, Gilardi & Grummer, San Francisco, for defendants and respondents.

LAMBDEN, Associate Justice.

The question of first impression posed by this appeal is: May a child conceived by artificial insemination by a donor sue the fertility clinic and doctors for failing to certify the signatures on the consent form pursuant to Family Code, section 7613, subdivision (a)? (All further unspecified code sections refer to the Family Code.) Alexandria S. (Alexandria) appeals through Lorraine S. as her guardian ad litem from the judgment dismissing her claims for negligence and breach of contract against the Pacific Fertility Medical Center (PFMC) and physicians Geoffrey Sher and Steven Dodge. (We use the singular PFMC to refer to all the defendants/respondents in this action.)

We reject Alexandria's novel claims.

BACKGROUND

Lorraine S. (Lorraine) and Gordon S. (Gordon) married in June 1991. The couple had discussed having a child, although Gordon had a vasectomy prior to the marriage. After investigating the remote possibility of reversing the vasectomy, Lorraine and Gordon discussed having Lorraine undergo artificial insemination by a donor.

In 1992, Lorraine and Gordon met with representatives of PFMC to discuss the insemination procedure. They both reviewed the donor catalogue and selected a man who resembled Gordon. PFMC provided the couple with a three-page consent form to execute.

The first sentence on the form stated Lorraine and Gordon authorized PFMC "to inseminate Lorraine S[.] artificially." The first page also contained the following: "We, and each of us, acknowledge our obligation to The third page of the form contained the signatures of Lorraine, Gordon, and witness Phyllis C. Yolan. Above the signatures on the third page, the language referred to the signing parties as "PARENTS" at four separate places. The third page also contained a section for authorization by a notary public, but this section remained blank. No space existed on the form for a physician's certification of Gordon's and Lorraine's consent to the procedure.

                care for and support otherwise [sic ] treat any child born as a result of such artificial insemination in all respects as though it were our natural born child."   The following paragraph appeared at the bottom of the second page:  "We, and each of us, acknowledge our obligation to care for and support and educate and otherwise treat and consider any child born as the result of such artificial insemination all respects [sic ] as though it were our natural child.  Neither of us shall ever allege in any proceeding that the child or children, is other than legitimate, and the male partner and the female partner acknowledge that the child shall be the lawful child of both the mother and male partner, and that neither of them shall assert a contrary position in any subsequent proceeding...."
                

In early 1992, Lorraine underwent the insemination procedure and became pregnant. Lorraine gave birth to Alexandria on December 26, 1992. Several months later, Gordon filed for divorce.

On February 24, 1995, the Monterey County Superior Court (dissolution court) in In re Marriage of Gordon A. S[.] and Lorraine Ann S[.] (Feb. 24, 1995) No. DR 27813 [nonpub. opn.] concluded Gordon had no legal duties or responsibilities towards Alexandria. The court found, in part: "Husband acknowledges that he was originally agreeable to having a child together, but this was while the parties were contemplating a normal married life. In actuality, their relationship was brief and stormy. They physically separated after about 5 days of marriage, resumed living together a few weeks later and finally separated a few days thereafter. [p] ... [p] Husband knew his wife wished to have a baby even through [sic ] they were planning to divorce. He had no objection to this. She told him that since they were still married, the Fertility Center required his authorization for any medical procedures. While at her home she presented him with a 1 page document that appeared to be a waiver of the right to bring legal action against the Fertility Center as a result of any difficulties arising out of the artificial insemination procedure. It was this limited one page document that he signed.

"He agrees that he wished her well during her pregnancy and was happy for her that she realized her wish when a healthy child was born.... He adamantly denied ever consenting to be a father to the child or that any person or written document informed him that his merely acquiescing in her desire to have a child would have that effect. [p] The court finds that the greater force of the evidence supports husband's version of what transpired. [p] Clearly, this was a marriage that had effectively, if not legally, ended long before the artificial insemination occurred. Petitioner did not wish to block Respondent's strongly held desire to raise a child. Cooperation on his part to effectuate that result does not rise to the level of consent required by Family Code section 7613(a).

"The safeguards written into Family Code Section 7613, and designed to insure unequivocal consent, were clearly not followed in this case. Documents were not properly witnessed and were essentially signed in blank. Had the precautions required by the law been carefully followed in this matter, the present protracted dispute would have been avoided. [p] The Court finds Petitioner is not legally obligated to support the minor child born as a result of artificial insemination conducted at the Pacific Fertility Center."

Lorraine did not appeal the judgment denying child support; instead, on May 8, 1995, Lorraine and Alexandria filed a complaint alleging general negligence, negligence per se, and breach of statutory duty against PFMC. They filed in Monterey County Superior Court and the action was transferred to the Marin County Superior Court. PFMC filed a demurrer on May 16, 1995, which the court sustained with leave to amend.

Only Alexandria filed a first amended complaint (with her mother appearing as guardian ad litem), and she alleged negligence, breach of statutory duty, and breach of contract. PFMC filed another demurrer and the court sustained it with leave to amend.

On September 5, 1995, Alexandria filed her second amended complaint, alleging negligence and breach of contract. PFMC demurred and the court sustained it without leave to amend. On December 19, 1995, the judgment of dismissal was filed, and Alexandria filed a timely notice of appeal.

DISCUSSION

I. Standard of Review

After amending her complaint twice, the trial court sustained, without leave to amend, PFMC's demurrer to Alexandria's claims of negligence and breach of contract. When considering an appeal from a demurrer, we accept the facts pleaded as true. (American Philatelic Soc. v. Claibourne (1935) 3 Cal.2d 689, 699, 46 P.2d 135.) The trial court erred if the pleading states a cause of action under any possible legal theory; it abused its discretion if the face of the pleadings shows a reasonable probability the defects could be cured by a properly amended pleading. (Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1812, 52 Cal.Rptr.2d 650; Gami v. Mullikin Medical Center (1993) 18 Cal.App.4th 870, 877, 22 Cal.Rptr.2d 819.) We find the trial court neither erred nor abused its discretion.

II. Negligence

Alexandria contends PFMC was negligent in failing to certify Gordon's signature pursuant to section 7613, subdivision (a). Section 7613, subdivision (a) states: "If, under the supervision of a licensed physician and surgeon and with the consent of her husband, a wife is inseminated artificially with semen donated by a man not her husband, the husband is treated in law as if he were the natural father of a child thereby conceived. The husband's consent must be in writing and signed by him and his wife. The physician and surgeon shall certify their signatures and the date of the insemination, and retain the husband's consent as part of the medical record, where it shall be kept confidential and in a sealed file. However, the physician and surgeon's failure to do so does not affect the father and child relationship. All papers and records pertaining to the insemination, whether part of the permanent record of a court or of a file held by the supervising physician and surgeon or elsewhere, are subject to inspection only upon an order of the court for good cause shown." Since subdivision (b) of section 7613 ensures the donor of semen "provided to a licensed physician and surgeon for use in artificial insemination of a woman other than the donor's wife" shall not be the legal father of the "child thereby conceived," Alexandria was left with no legal father.

Alexandria argues the intent of section 7613, subdivision (a) is to guarantee a record of consent and paternity to ensure, in accord with public policy, the child will have two parents financially responsible for the child. Alexandria contends the statute does not create a "mere ministerial responsibility." Instead, she maintains the statute "has no use if it is not to protect a child from being left fatherless, and to ensure that there is a male parent responsible as the non-biological father when artificial insemination procedures are used to reach conception." She asserts the state has an " 'interest in preserving and...