Adoption of Matthew B.

• Decision Date: 30 July 1991
• Docket Number: A045711,Nos. A044280,s. A044280
• Court: California Court of Appeals Court of Appeals
• Parties: In re ADOPTION OF MATTHEW B.-M., a Minor. NANCY B., Plaintiff and Appellant, v. CHARLOTTE M., Defendant and Respondent. TIMOHTY M., Plaintiff and Respondent, v. NANCY B., Defendant and Appellant.

Page 18

284 Cal.Rptr. 18

232 Cal.App.3d 1239

In re ADOPTION OF MATTHEW B.-M., a Minor.

NANCY B., Plaintiff and Appellant, v. CHARLOTTE M., Defendant and Respondent.

TIMOHTY M., Plaintiff and Respondent, v. NANCY B., Defendant and Appellant.

Nos. A044280, A045711.

Court of Appeal, First District, Division 3, California.

July 30, 1991.

Rehearing Denied Aug. 28, 1991.

Review Denied Nov. 21, 1991.

[232 Cal.App.3d 1250] Rita L. Swenor, Sonoma, under appointment by the Court of Appeal, for plaintiff and appellant and defendant and appellant.

Christian R. Van Deusen, Van Deusen, Youmans and Walmsley, Inc., Santa Ana, for defendant and respondent and plaintiff and respondent.

John K. Van de Kamp and Daniel E. Lungren, Attys. Gen., Charlton G. Holland, Asst. Atty. Gen., Stephanie Wald and Angela Botelho, Deputy Attys. Gen., San Francisco, for the minor.

CHIN, Associate Justice.

In this first surrogate parenting case to reach a California appellate court, we begin to grapple with the conflicting human and public policy concerns that surround the ongoing debate about surrogacy. The primary casualty of this conflict is a child caught in the cross fire between his birth mother, on the one side, and his father and adopting mother on the other. The best interests of this young child must be our paramount concern.

In 1984, appellant Nancy B. learned from a newspaper article that respondents Timothy and Charlotte M., who were unable to have a child of their own, were interested in a surrogate parenting arrangement. Nancy later agreed to be a surrogate mother for the M.'s. ¹ On September 1, 1986, some nine months after being artificially inseminated with Timothy's sperm, Nancy gave birth to Matthew. Three days later, Nancy gave custody of Matthew to the M.'s, with whom he has lived ever since. Timothy obtained a stipulated judgment of paternity. Charlotte petitioned to adopt Matthew. In support of her petition, she filed a consent to adoption Nancy signed in November 1986. Almost eight months after signing the consent, Nancy petitioned to withdraw it. The trial court denied relief. Nancy then moved to vacate the judgment of paternity. The trial court again denied relief. In one appeal (action No. A044280), Nancy challenges the trial court's denial of her petition to withdraw consent. In the other (action No. A045711), she challenges the denial of her motion to vacate the judgment of paternity.

After careful consideration of the evidence, we affirm both rulings. In so doing, we do not attempt to resolve the debate over the desirability or validity of surrogate contracts. The facts of this case, i.e., Matthew's birth, his placement with the M.'s, and Nancy's execution of a consent to adopt, take us beyond the debate over the validity of surrogate contracts. We rely instead on those considerations mandated by statute, the best interests of the child.

FACTUAL AND PROCEDURAL BACKGROUND

Nancy B. was first interested in surrogate parenting in 1984. She saw an article discussing a surrogate arrangement between the M.'s and another woman. Nancy contacted the Center for Reproductive Alternatives (the Center) about becoming a surrogate mother. Her application stated that she wanted to be a surrogate in order to have a positive birth experience without the responsibility of raising the child. Nancy also stated that she loved the feeling of being pregnant but had no desire to have another child, that she had strong feelings against becoming a single mother, and that she wanted very much to give the gift of a child to a couple that could not otherwise have children.

Nancy first met the M.'s at the Center on April 2, 1985. They next met in May at the Center and together watched a lengthy videotape in which William Handel, an attorney specializing in surrogate contracts who was representing the M.'s, read and explained each provision of the proposed contract, including the legal aspects of surrogate parenting. Afterwards, Handel joined the meeting and answered questions about the contract. Since Handel required that independent counsel advise surrogates prior to their execution of an agreement, Nancy was told to see her own attorney before signing the contract.

Nancy subsequently met for three and one-half hours with Larry Levy, an attorney hired for Nancy by the Center and paid for by the M.'s. Nancy discussed the contract with Levy, including its potential illegality and unenforceability. Nancy signed the contract in Levy's office on June 17, 1985.

The contract designated Timothy as the "Natural Father" and Charlotte as the "Adopting Mother." In it, Nancy agreed to be artificially inseminated with Timothy's sperm "so that [Nancy] may bear a Child biologically related to [Timothy], to be ... subsequently adopted by [Charlotte] as her child." The executed contract also included a number of additions Nancy requested. Finally, Nancy warranted in the contract that she had retained and consulted independent legal counsel and had been advised regarding the terms of the contract and its enforceability.

Nancy became pregnant in December 1985, and Matthew was born on September 1, 1986, at 11:54 p.m. On the birth certificate, Nancy designated Timothy as the father. Three days later, Nancy read and signed a "Health Facility Minor Release Report" (Release), which authorized the hospital to release Matthew to the M.'s. The Release recited that Nancy was releasing Matthew to the M.'s "for the purpose of Adoption Planning," ² and contemplated that the M.'s would file the adoption petition within 30 days, or the State of California Department of Social Services would make an investigation.

On September 23, 1986, Timothy filed a paternity action with a complaint and a stipulation to judgment Nancy had signed. The court entered judgment by stipulation on October 28, declared Timothy to be Matthew's father, and gave Timothy sole custody.

On September 25, within 30 days of Nancy's execution of the Release, Charlotte filed a petition for stepparent adoption. On November 13, Nancy signed a consent to the adoption before a clerk at the Marin Civic Center. (Civ.Code, § 226.9.) ³ The signing was part of a surprise birthday party Nancy initiated and planned for Charlotte's 44th birthday. Nancy felt that the signing would be a nice birthday gift for Charlotte. The party involved an elaborate champagne picnic lunch on the lawn of the Marin Civic Center. Nancy gave the original of her signed consent to Charlotte as a birthday present.

The day of the picnic was Nancy's first contact with Matthew since she gave him to Charlotte at the hospital. After that visit, Nancy saw Matthew twice before Christmas and again in February when she dropped by the M.'s residence unannounced. She also saw him in March and June 1987.

The relationship between the M.'s and Nancy began to deteriorate in late February 1987 when, despite her agreement that publicity would be detrimental to Matthew, Nancy began appearing on television and in newspapers stating that she intended to sue for custody of Matthew and displaying pictures of Matthew and Charlotte without the M.'s consent. Nancy promised the M.'s she would stop appearing in the media, but she did not. As a result, the M.'s stopped trusting Nancy and decided that Matthew should have no further contact with her.

On July 2, 1987, Nancy filed a petition requesting that the court allow her to withdraw her consent to the stepparent adoption and grant her periods of custody. ⁴ After numerous continuances, the hearing commenced in April 1988. At the close of her case, Nancy moved orally and without notice to amend her petition under Code of Civil Procedure section 473, presumably to conform to proof, and to vacate the judgment of paternity. The court did not grant either motion. The hearing concluded in August 1988, and the court filed its tentative decision denying Nancy's petition on October 3. On Nancy's request, the court adopted the tentative decision as its statement of decision on November 7. The court entered judgment denying the petition on November 15. Nancy filed her notice of appeal from the judgment on November 28. ⁵

Having lost on her petition, on October 25, 1988, Nancy again moved to vacate the judgment of paternity entered two years before in October 1986. The court heard the motion December 6, 1988, and denied it on February 23, 1989. Nancy filed her notice of appeal from the order denying the motion to vacate on April 6, 1989. At Nancy's request, we consolidated the appeals on June 29, 1989.

DISCUSSION

I. Petition to Withdraw Consent to Stepparent Adoption

Resolution of the appeal from the order denying Nancy's petition to withdraw consent turns on the application of section 226a. Section 226a provides that a natural parent's withdrawal of consent to adoption requires court approval and directs the court to withhold approval unless it "finds that withdrawal of the consent ... is reasonable in view of all the circumstances, and that withdrawal of the consent will be for the best interests of the child...." (Emphasis added.) If both conditions are not met, the court should deny the petition.

Section 226a "vest[s] the trial court with considerable discretion in deciding whether to permit withdrawal of consent. [Citations.] This discretion is made necessary by the absence of a mechanical or talismanic solution by which section 226a contests may be resolved. The sum of intangibles which go into the statutory 'reasonable under the circumstances' and 'best interests' formula is in part comprised of the demeanor, attitudes, intonation, sincerity and personality of the witnesses as well as more exact concerns as to the relative fitness of the parties, educational ... opportunities for the child, the emotional and love attachments the parties have for the child and the child's mental and physical health." (Guardianship of Baby Boy M. (1977) 66 Cal.App.3d 254, 267, 135 Cal.Rptr. 866, fn. omitted.) The weight...