People v. Sorensen

• Decision Date: 26 February 1968
• Docket Number: Cr. 11708
• Citation: 66 Cal.Rptr. 7,68 Cal.2d 280,437 P.2d 495
• Court: California Supreme Court
• Parties: , 437 P.2d 495, 25 A.L.R.3d 1093 The PEOPLE, Plaintiff and Respondent, v. Folmer J. SORENSEN, Defendant and Appellant.

Page 7

66 Cal.Rptr. 7

68 Cal.2d 280, 437 P.2d 495, 25 A.L.R.3d 1093

The PEOPLE, Plaintiff and Respondent, v. Folmer J. SORENSEN, Defendant and Appellant.

Cr. 11708.

Supreme Court of California,

In Bank.

Feb. 26, 1968.

James C. Van Dyke and Van Dyke & Shaw, Stockton, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Edward P. O'Brien and Gloria F. DeHart, Deputy Attys. Gen., for plaintiff and respondent.

McCOMB, Justice.

Defendant appeals from a judgment convicting him of violating section 270 of the Penal Code (willful failure to provide for his minor child), a misdemeanor.

The settled statement of facts recites that seven years after defendant's marriage it was medically determined that he was sterile. His wife desired a child, either by artificial insemination or by adoption, and at first defendant refused to consent. About 15 years after the marriage defendant agreed to the artificial insemination of his wife. Husband and wife, then residents of San Joaquin County, consulted a physician in San Francisco. They signed an agreement, which is on the letterhead of the physician, requesting the physician to inseminate the wife with the sperm of a white male. The semen was to be selected by the physician, and under no circumstances were the parties to demand the name of the donor. The agreement contains a recitation that the physician does not represent that pregnancy will occur. The physician treated Mrs. Sorensen, and she became pregnant. Defendant knew at the time he signed the consent that when his wife took the treatments she could become pregnant and that if a child was born it was to be treated as their child.

A male child was born to defendant's wife in San Joaquin County on October 14, 1960. The information for the birth certificate was given by the mother, who named defendant as the father. Defendant testified that he had not provided the information on the birth certificate and did not recall seeing it before the trial.

For about four years the family had a normal family relationship, defendant having represented to friends that he was the child's father and treated the boy as his son. In 1964, Mrs. Sorensen separated from defendant and moved to Sonoma County with the boy. At separation, Mrs. Sorensen told defendant that she wanted no support for the boy, and she consented that a divorce be granted to defendant. Defendant obtained a decree of divorce, which recites that the court retained 'jurisdiction regarding the possible support obligation of plaintiff in regard to a minor child born to defendant.'

In the summer of 1966 when Mrs. Sorensen became ill and could not work, she applied for public assistance under the Aid to Needy Children program. The County of Sonoma supplied this aid until Mrs. Sorensen was able to resume work. Defendant paid no support for the child since the separation in 1964, although demand therefor was made by the district attorney. The municipal court found defendant guilty of violating section 270 of the Penal Code and granted him probation for three years on condition that he make payments of $50 per month for support through the district attorney's office.

From the record before us, this case could be disposed of on the ground that defendant has failed to overcome the presumption that 'A child of a woman who is or has been married, born during the marriage or within 300 days after the dissolution thereof, is presumed to be a legitimate child of that marriage. This presumption may be disputed only by the people of the State of California in a criminal action brought under Section 270 of the Penal Code or by the husband or wife, or the descendant of one or both of them. In a civil action, this presumption may be rebutted only by clear and convincing proof.' (Evid.Code, § 661, former Code Civ.Proc., § 1963, subd. 31.)

The only testimony as to defendant's sterility was that of defendant and his wife that it had been medically determined seven years after the marriage that defendant was sterile. In their written request to the doctor that he artificially inseminate Mrs. Sorensen, dated August 12, 1959, the Sorensens said: 'We make this request since we realize that Mr. Sorensen is sterile, adequate laboratory tests having been performed. * * *' There was no medical testimony by a scientific expert in the field of male reproduction that defendant was sterile at the time of conception. However, in view of the settled statement, the only question for our determination is:

Is the husband of a woman, who with his consent was artificially inseminated with semen of a third-party donor, guilty of the crime of failing to support a child who is the product of such insemination, in violation of section 270 of the Penal Code? ¹

The law is that defendant is the lawful father of the child born to his wife, which child was conceived by artificial insemination to which he consented, and his conduct carries with it an obligation of support within the meaning of section 270 of the Penal Code.

Under the facts of this case, the term 'father' as used in section 270 cannot be limited to the biologic or natural father as those terms are generally understood. The determinative factor is whether the legal relationship of father and child exists. A child conceived through heterologous artificial insemination ² does not have a 'natural father,' as that terms is commonly used. The anonymous donor of the sperm cannot be considered the 'natural father,' as he is no more responsible for the use made of his sperm than is the donor of blood or a kidney. Moreover, he could not dispute the presumption that the child is the legitimate issue of Mr. and Mrs. Sorensen, as that presumption 'may be disputed only by the people of the State of California * * * or by the husband or wife, or the descendant of one or both of them.' (Evid.Code, § 661, supra.) With the use of frozen semen, the donor may even be dead at the time the semen is used. Since there is no 'natural father,' we can only look for a lawful father.

It is doubtful that with the enactment of section 270 of the Penal Code and its amendments the Legislature considered the plight of a child conceived through artificial insemination. However, the intent of the Legislature obviously was to include every child, legitimate or illegitimate, born or unborn, and enforce the obligation of support against the person who could be determined to be the lawful parent. ³

In construing section 270 of the Penal Code, the court in In re Clarke, 149 Cal.App.2d 802, 309 P.2d 142, said: 'Penal statutes are to be 'construed according to the fair import of their terms, with a view to effect its objects and to promote justice' Pen.Code, § 4. * * * In determining whether a penal statute is sufficiently explicit to inform those who are subject to it what is required of them, the court must endeavor, if possible, to view the statute from the standpoint of a reasonable man who might be subject to its terms (citation); and the requirement of reasonable certainty does not preclude the use of ordinary terms to express ideas which find adequate interpretation in common usage and understanding.' (pp. 806--807, 309 P.2d p. 146.)

In light of these principles of statutory construction, a reasonable man who, because of his inability to procreate, actively participates and consents to his wife's artificial insemination in the hope that a child will be produced whom they will treat as their own, knows that such behavior carries with it the legal responsibilities of fatherhood and criminal responsibility for nonsupport. One who consents to the production of a child cannot create a temporary relation to be assumed and disclaimed at will, but the arrangement must be of such character as to impose an obligation of supporting those for whose existence he is directly responsible. As noted by the trial court, it is safe to assume that without defendant's active participation and consent the child would not have been procreated.

In a prosecution under section 270 of the Penal Code, paternity is an essential element of the crime of willful failure to support a minor child. (Patterson v. Municipal Court, 232 Cal.App.2d 289, 294(8), 42 Cal.Rptr. 769.) Section 270e of the Penal Code reads: 'No other evidence shall be required to prove marriage of husband and wife, or that a person is the lawful father or mother of a child or children, than is or shall be required to prove such facts in a civil action * * * both husband and wife shall be competent to testify to any and all relevant matters, including the fact of marriage and the parentage of a child or children. * * *' As interpreted in the Patterson case, section 270e 'in effect provides for a prima facie finding of paternity by such evidence as would be sufficient to determine paternity in a civil action; but, nevertheless, when a case is submitted to the jury, that boty can only convict if it finds beyond a reasonable doubt that defendant is the father of the child and has failed to support it.' (P. 299(10), 42 Cal.Rptr. p. 775) '(I)f a showing of paternity appears by a preponderance of the evidence the defendant need 'merely to go forward with evidence to the extent of raising a reasonable doubt that' he is the father of the child.' (P. 301(12), 42 Cal.Rptr. p. 776.)

The documentary evidence in this case consisted of the written agreement between husband and wife that the physician inseminate the wife with the sperm of a white male, and birth certificate listing defendant as the father, and a copy of the interlocutory decree of divorce. While defendant testified that he did not know the contents of the birth certificate, this testimony was not sufficient to raise a reasonable doubt that he was the father. ⁴ Therefore, since, the word 'father' is construed to include a husband who, unable to accomplish his objective of creating a child by using his own semen, purchases semen from a donor and uses it to inseminate...