L.F. v. Breit

• Decision Date: 10 January 2013
• Docket Number: Record Nos. 120158,120159.
• Citation: 285 Va. 163,736 S.E.2d 711
• Parties: L.F., a minor v. William D. BREIT, et al. Beverley Mason v. William D. Breit, et al.
• Court: Virginia Supreme Court

285 Va. 163

736 S.E.2d 711

L.F., a minor

v.William D. BREIT, et al.

Beverley Mason

v.William D. Breit, et al.

Record Nos. 120158, 120159.

Supreme Court of Virginia.

Jan. 10, 2013.

Jerrold G. Weinberg(Weinberg & Stein, Norfolk, on briefs), for appellant, RecordNo. 120158.

Kevin E. Martingayle, Virginia Beach (William D. Breit; Bischoff Martingayle; Serious Injury Law Center, on brief), for appelleeWilliam D. Breit, RecordNo. 120158.

No brief filed on behalf of appelleeBeverly Mason, RecordNo. 120158.

Amicus Curiae: The New Hope Center for Reproductive Medicine (Elizabeth Griffin Robertson; Goodman, Allen & Filetti, Glen Allen, on brief), in support of appellant, RecordNo. 120158.

Frank K. Friedman, Roanoke (Reeves W. Mahoney; Andrew T. Richmond; Poole Mahoney, Virginia Beach; Woods Rogers, on briefs), for appellant, RecordNo. 120159.

Kevin E. Martingayle, Virginia Beach (William D. Breit; Bischoff Martingayle; Serious Injury Law Center, on brief), for appellees, RecordNo. 120159.

No brief filed on behalf of L.F., a Minor, RecordNo. 120159.

Amicus Curiae: The New Hope Center for Reproductive Medicine (Elizabeth Griffin Robertson; Goodman, Allen & Filetti, Glen Allen, on brief), in support of appellant, RecordNo. 120159.

Amicus Curiae: Center for Global Justice, Human Rights and the Rule of Law at Regent University School of Law (Lynne Marie Kohm, Virginia Beach, on brief), in support of appellee, L.F., a Minor, RecordNo. 120159.

Present: KINSER, C.J., LEMONS, GOODWYN, MILLETTE, MIMS, and POWELL, JJ., and RUSSELL, S.J.

Opinion by Justice WILLIAM C. MIMS.

In these appeals, we consider whether Code§§ 20–158(A)(3) and 32.1–257(D) bar an unmarried, biological father from establishing legal parentage of his child conceived through assisted conception, pursuant to a voluntary written agreement as authorized by Code§ 20–49.1(B)(2).

I.BACKGROUND AND MATERIAL PROCEEDINGS BELOW

Beverley Mason and William D. Breit had a long-term relationship and lived together as an unmarried couple for several years.They wished to have a child together.Unable to conceive naturally, they sought reproductive assistance from Dr. Jill Flood, a board-certified fertility doctor.

Dr. Flood performed two cycles of in vitro fertilization (“assisted conception”).Each time, she retrieved eggs from Mason, fertilized them outside her body using Breit's sperm, and transferred the resulting embryos into Mason's body.Breit was present for all stages of the in vitro fertilization process and continued to live with Mason throughout the resulting pregnancy.

Prior to the child's birth, Mason and Breit entered into a written custody and visitation agreement providing Breit with reasonable visitation rights and agreeing that such visitation was in the child's best interests.

On July 13, 2009, Mason gave birth to L.F. Breit was present for L.F.'s birth and is listed as the father on her birth certificate.The couple named her after Mason's paternal grandmother and Breit's maternal grandmother, and her last name is a hyphenated combination of their surnames.

On the day after L.F.'s birth, Mason and Breit jointly executed a written agreement, identified as an “Acknowledgement of Paternity,” stating that Breit is L.F.'s legal and biological father.¹The couple jointly mailed birth announcements naming Mason and Breit as L.F.'s parents.They stated to friends and family that Breit was L.F.'s father, and continued to live together for four months following L.F.'s birth.

After the couple separated, Breit continued to provide for L.F. financially.He maintained her as his child on his health insurance policy and continued to provide child support.He consistently visited L.F. on weekends and holidays, thereby beginning to establish an ongoing parent-child relationship with her.Breit took an active role in L.F.'s life until August 2010, when Mason unilaterally terminated all contact between Breit and L.F.

On August 24, 2010, Breit filed a petition for custody and visitation in the Juvenile and Domestic Relations District Court of the City of Virginia Beach.Mason filed a motion to dismiss and the court dismissed Breit's petition without prejudice.In November 2010, pursuant to Code§ 20–49.2, Breit filed a petition to determine parentage and establish custody and visitation (“petition to determine parentage”) in the Circuit Court of the City of Virginia Beach, naming Mason and L.F. (collectively “Mason”) as co-partiesdefendant.He filed a motion for summary judgment, arguing that the acknowledgement of paternity that he and Mason voluntarily executed pursuant to Code§ 20–49.1(B)(2) created a final and binding parent-child legal status between Breit and L.F. Mason filed pleas in bar asserting that, pursuant to Code§§ 20–158(A)(3) and 32.1–257(D), Breit was barred from being L.F.'s legal parent because he and Mason were never married and L.F. was conceived through assisted conception.

At the hearing on the motions, the circuit court appointed Jerrold Weinberg, an attorney who previously had been retained by Mason to represent L.F., to serve as L.F.'s guardian ad litem (“GAL”).The circuit court sustained the pleas in bar, denied Breit's motion for summary judgment, and dismissed by nonsuit the remainder of Breit's petition seeking custody and visitation.Breit appealed the circuit court's judgment to the Court of Appeals.

The Court of Appeals reversed the circuit court's decision to sustain the pleas in bar.Breit v. Mason,59 Va.App. 322, 337–38, 718 S.E.2d 482, 489(2011).It held that

a known sperm donor who, at the request of a woman to whom he is not married, donates his sperm for the purpose of uniting that sperm with that woman's egg to accomplish pregnancy through assisted conception and who, together with the biological mother, executes an uncontested Acknowledgement of Paternity under oath, pursuant to Code§ 20–49.1(B)(2), is not barred from filing a parentage action pursuant to Code§ 20–49.2 to establish paternity of the child resulting from assisted conception.

Id. at 337, 718 S.E.2d at 489.

In reaching its decision, the Court of Appeals“harmonized”Code§§ 20–49.1(B)(2) and 20–158(A)(3) to be consistent with “the intent of the legislature to ensure that all children born in the Commonwealth have a known legal mother and legal father.”Id. at 336–37, 718 S.E.2d at 489.The Court of Appeals concluded that it would create a “manifest absurdity” to interpret Code§ 20–158(A)(3) to foreclose any legal means for an intended, unmarried, biological father to establish legal parentage of a child born as a result of assisted conception, merely by virtue of his status as a “donor.”²Id. at 336, 718 S.E.2d at 489.Mason appealed, and we granted the following assignments of error:

1.The Court of Appeals erred in rejecting the circuit court's decision that a sperm donor who is unmarried to the mother of a child conceived by “assisted conception” is not the child's father under Va.Code §§ 20–158(A)(3)and32.1–257(D), and in overturning the circuit court's ruling sustaining the pleas in bar.

....

2.The Court of Appeals erred in failing to rule that donor's acknowledgement of paternity was void ab initio and ineffective and that donor lacked any proper basis for asserting parentage.³

We also granted Breit's assignments of cross-error:

1.The Court of Appeals erred in failing to reverse the trial court for failing to enter summary judgment in favor of the father pursuant to § 20–49.1(B)(2) when the birth mother voluntarily signed an “acknowledgement of paternity” under oath acknowledging the biological father to be the legal father of the child.

2.The Court of Appeals erred in failing to rule that § 20–158(A)(3)and§ 32.1–257(D) are unconstitutional and that any statutory interpretation that fully and finally terminates any potential rights of a sperm donor violates the constitutionally protected liberty rights of equal protection and due process.

II.LEGISLATIVE HISTORY AND POLICY

Before we analyze the issues in this case, it is helpful to review the legislative history and policy behind the two primary statutes.

A.TITLE 20,CHAPTER 3.1(CODE§ 20–49.1 et seq.)

Code§ 20–49.1 et seq. is the statutory scheme designed to establish the legal parentage of children born to unmarried parents.

At common law, there was no recognized duty on the part of an unmarried father to support his biological child.SeeBrown v. Brown,183 Va. 353, 355, 32 S.E.2d 79, 80(1944).The first statutory modification of the common-law rule occurred in 1952, when the General Assembly allowed proof of paternity to establish such a duty, but only by the father's admission of paternity under oath before a court.1952 Actsch. 584(formerly codified asCode§ 20–61.1).In 1954, this statute was liberalized to allow proof of paternity through the use of a father's out-of-court admission of paternity in writing under oath.1954 Actsch. 577.In 1988, Code§ 20–61.1 was repealed, and the General Assembly amended and recodified the subject matter in Chapter 3.1,Title 20, Code § 20–49.1 et seq. 1988Actsch. 866.

Chapter 3.1 is entitled “Proceedings to Determine Parentage.”The provision most pertinent to this case, Code§ 20–49.1, is specifically labeled “[h]ow parent and child relationship established.”Since its enactment in 1988, Code§ 20–49.1 has provided for the establishment of paternity by a voluntary written agreement of the biological father and mother, made under oath, acknowledging paternity.In 1992, it was expanded to permit the establishment of paternity through the use of scientifically reliable genetic testing.1992 Actsch. 516.There is no limitation in Chapter 3.1 barring parents who conceive through assisted conception from voluntarily establishing paternity by such a written agreement.Consequently, Code§ 20–49.1 et seq., read without referencing other statutes, would control the determination of paternity in all cases concerning children of unwed...