Sayler v. Sun

• Jurisdiction: Montana,United States,California
• Citation: Sayler v. Sun, 413 Mont. 303, 536 P.3d 399 (Mont. 2023)
• Decision Date: 20 September 2023
• Parties: Megan SAYLER, Petitioner and Appellee, v. Yan SUN, Respondent and Appellant.
• Court: Montana Supreme Court
• Docket Number: DA 22-0133

413 Mont. 303

536 P.3d 399

Megan SAYLER, Petitioner and Appellee,

v.Yan SUN, Respondent and Appellant.

DA 22-0133

Supreme Court of Montana.

Submitted on Briefs: November 2, 2022

Decided: September 20, 2023

For Appellant: Melinda A, Driscoll, Fred Law Firm, PLLC, Billings, Montana, Morgan E. Dake, Crowley Fleck, PLLP, Billings, Montana

For Appellee: Penelope S. Strong, Attorney at Law, Billings, Montana

Justice Dirk Sandefurdelivered the Opinion of the Court.

¶1Yan Sun(Father) appeals from the August 2021 and February 2022 judgments of the Montana Thirteenth Judicial District Court, Yellowstone County, adjudicating a parental interest and accompanying parenting plan regarding his minor child (T.S.J.) in favor of his nonparent ex-wife Megan Sayler(Surrogate).We address the following restated issues:

1.Whether the District Court erroneously concluded that the parties’ California Gestational Carrier Agreement (GCA) did not preclude Surrogate from later establishing a parental interest in the subject child under Montana law?

2.Whether the District Court erroneously failed to conclude that the parent-child relationship provision of the parties’ subsequent Montana premarital agreement was unenforceable due to lack of voluntary consent of Father?

3.Whether the District Court erroneously failed to conclude that the parent-child relationship provision of the parties’ Montana premarital agreement was equitably unconscionable?

4.Whether the District Court erroneously concluded that the parties’ post-surrogacy premarital agreement and Surrogate's ensuing relationship with the child were sufficient to create a third-party parental right regarding the child?

We affirm in part and reverse in part.

FACTUAL AND PROCEDURAL BACKGROUND

¶2Father is a Chinese national who entered the United States in May 2017 at age 20 under a student visa to study at Alabama's Auburn University in an English-speaking business program catered to international students.¹With the financial support and assistance of his mother and remaining family in China, Father later decided to have a child in the United States through a private California surrogacy company specializing in surrogate child births in accordance with California Family Code §§ 7960 through 7962(authorizing and providing for assisted reproduction agreements for gestational carriers and uncontested judicial confirmation of sole parentage in client parent).He reasoned that surrogacy was his best opportunity to father a child because he is a homosexual male and surrogacy is illegal in China.

¶3 After engaging the California surrogacy company, Father selected a company-associated surrogate candidate (Surrogate) who was an unacquainted 32-year-old single mother of two children (ages 8 and 4) residing and regularly employed in Billings, Montana.²After the company conducted a lengthy and comprehensive suitability evaluation of Father and Surrogate through various associated surrogacy professionals (inter alia including a company-provided Chinese-speaking social worker), Father and Surrogate executed a 72-page California law Gestational Carrier Agreement (GCA) in February 2019.In pertinent essence, the GCA provided for: (1) an in vitro fertilization procedure in California (i.e., a sperm specimen from Father, female ovum from an anonymous third-party donor, and surgical implantation of the resulting embryo in Surrogate's uterus); (2) Surrogate's return to Montana and carriage of the implanted embryo to term for birth in Montana; (3) immediate and unconditional Surrogate relinquishment of the newborn to Father upon birth as the "sole legal parent" with no parental or custodial right or interest acquired or retained by Surrogate; (4) Surrogate's corresponding written agreement that "the best interests of the [c]hild will be served with"Father"as the [c]hild's only parent" and in his "sole legal and physical custody"; (5) Surrogate's consent and cooperation in "any legal process necessary to confirm"Father's sole "parental rights" in the child; and (6) specified compensation of Surrogate in the total amount of $53,500.00.Each party separately entered into the GCA with the advice and assistance of independent counsel.Under the GCA, a separate contract with the California surrogacy company, and with funds provided by his mother in China, Father ultimately paid more than $200,000 for the subject surrogacy services.

¶4 As particularly pertinent here, the GCA provided:

[Surrogate] shall neither form, nor attempt to form, any relationship, including, without limitation, a parent-child relationship, with the [c]hild, and subject to applicable laws, hereby freely, readily, and immediately waives all parental rights and/or any claim of parental rights, if any, to the [c]hild and shall fully assist and aid [Father] in confirming and legalizing his parent-child relationship with the [c]hild.

[SURROGATE] FULLY ACKNOWLEDGES SHE SHALL NOT HAVE ANY PARENTAL OR CUSTODIAL RIGHTS OR OBLIGATIONS TO THE CHILD AND [SURROGATE] IS NOT THE LEGAL, NATURAL, OR BIOLOGICAL MOTHER OF THE CHILD.

GCA §§ 3.1 and 3.2.The GCA further expressly provided that "all questions concerning its validity," construction/interpretation, performance, and enforcement "shall be governed by, and ... in accordance with," California law.The agreement nonetheless provided, however, that the GCA "and the [p]arties ... have a significant relationship to the State of Montana, in addition to the State of California(as stated ... in [GCA]Section 32.1)."The GCA was expressly subject to amendment"only by" a subsequent signed written agreement of the parties.Before the expected birth of the baby in Billings, a California Superior Court entered an uncontested judgment on December 20, 2019, decreeing in accordance with the GCA that: (1)Father was "the genetic, legal, and sole parent" of the subject child; (2) Surrogate "is ... not to be a legal parent" of the child; and (3)"[i]t is in the best interest of" the expected child "that sole legal and physical custody of [the] child ... be with [Father]."

¶5 On December 27, 2019, the subject child (baby-boy T.S.J.) was born in Billings, three weeks before his expected due date.Father had originally planned to be in Billings for the birth, and then temporarily stay there with the child in a rental home for the next month before returning to school in Alabama.Upon notice of the unexpected early birth, Father immediately flew to Billings and rented an Airbnb home in downtown Billings while Surrogate and the baby remained in the hospital for a couple of days.³In accordance with Chinese custom, the plan was for Father's mother to come to the United States to help care for and raise the baby while he finished school.The plan went awry, however, when his mother was unable to obtain a visa for travel to the United States due to Covid-19 pandemic restrictions and related complications.

¶6 Upon discharge from the hospital, Surrogate offered to drive Father and child to his Airbnb rental to drop them off as previously agreed.On arrival, however, concerned about the safety of the downtown location, and Father's lack of experience in caring for a newborn baby alone, Surrogate invited him and the baby to temporarily stay at her home until he could find a more suitable temporary rental.Upon accepting the offer, Father began intermittently staying at Surrogate's home, where she thereafter helped him with the newborn when they were there.On January 5, 2020, less than two weeks after the child was born, based on her immediate emotional attachment to the child and awareness of Father's desire to remain in the United States and his unanticipated child care problem, Surrogate proposed that she and Father enter into a platonic legal marriage for the purposes of allowing her to continue to have a relationship with the baby by helping him care for and raise the child, and thereby allowing him to continue his university schooling in Billings and facilitate his eligibility to obtain a United States Citizenship and Immigration Services "green card" allowing him to lawfully remain indefinitely in the United States upon eventual expiration of his student visa.She proposed that his mother could then "give [Surrogate] the [monetary] amount [his mother] ... [had] previously""offered" to assist him with child care costs and living arrangements in the United States.⁴In her proposal, Surrogate made no mention of any contemplation of her using their platonic marriage as a basis for adoption or other means of acquisition of a legal parental or custody interest regarding his child.She did advise him, however, of her intent to see a lawyer to obtain a draft premarital agreement for their mutual consideration as a means to formalize and implement their uncommon marital arrangement.Father tentatively agreed to Surrogate's marriage proposal as generally explained.The District Court later found that, upon discussion, the parties agreed to get married because: (1)they"both wanted to raise [the child] together"; (2) Surrogate would then help Father"gain admission to MSU-Billings to obtain a college degree"; (3) the marriage would allow her to add him "to her employ[ment] health insurance" coverage; and (4) it would "help [him] obtain a green card for immigration purposes."

¶7 On January 20, 2020, a week before their upcoming January 27th civil marriage ceremony, Surrogate provided Father a proposed written premarital agreement independently drafted by her lawyer pursuant to Title 40,chapter 2, part 6, MCA.In pertinent part, the proposed agreement:

(1) included separate attached exhibits identifying various items of property, with itemized valuations, then owned individually by each party;

(2) provided that, in the event of a future marital dissolution proceeding, all property previously or subsequently acquired in either of their "sole name[s]," would be "separate non-marital property" respectively retained and distributed to

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