Shin v. Kong, A087452.

• Decision Date: 28 April 2000
• Docket Number: No. A087452.,A087452.
• Court: California Court of Appeals Court of Appeals
• Parties: Hong Soo SHIN, Plaintiff and Appellant, v. Oyoung KONG, Defendant and Respondent.

95 Cal.Rptr.2d 304

80 Cal.App.4th 498

Hong Soo SHIN, Plaintiff and Appellant, v. Oyoung KONG, Defendant and Respondent.

No. A087452.

Court of Appeal, First District, Division 1.

April 28, 2000.

Review Denied July 19, 2000.^*

Arlo H. Smith, Richmond, for Plaintiff and Appellant.

Burge, Strid and Dickinson and Lawrence A. Strid, Laguna Hills, for Defendant and Respondent.

MARCHIANO, J.

When appellant was divorced from his wife, he learned for the first time that he was not the biological father of the child born during their marriage. After disclaiming all parental rights to the child in the dissolution proceeding, appellant sued his wife's doctor as the true biological father. In a contemporary interpretation of an ancient grievance, appellant alleged that the doctor performed an artificial insemination on his ex-wife without his consent resulting in the birth of a child assumed to be his son and demanded tort damages. We affirm the trial court's judgment on the pleadings, and find that appellant's complaint is barred for lack of a legal duty owing from the doctor to appellant and for reasons of public policy embodied in statutes that preclude recovery for breach of moral duties.

BACKGROUND

Until September of 1997, when his wife filed for divorce, appellant was married to Sil Shin. Respondent, Dr. Kong, is a medical doctor who specializes in obstetrics and gynecology. Appellant's wife worked for Dr. Kong during the time of the events in the complaint. According to appellant's complaint in this action, Dr. Kong rendered medical services to Sil Shin, consisting of artificial insemination, without "advising, consulting or obtaining the permission" of appellant. As a result of the procedure, Sil Shin gave birth to the child. Appellant believed that he was the biological father of the child and "grew emotionally attached to and loved" the child. Appellant also provided financial support for the child from his birth in 1993 until the dissolution.

When Sil Shin filed for divorce, appellant moved out of the family home at her request. In December of 1997, appellant learned that he was not the biological father of the child. In February and June of 1998, Dr. Kong revealed that he had artificially inseminated Sil Shin and was the biological father of the child. The complaint alleges that Dr. Kong failed to inform appellant of the facts relating to the artificial insemination and the biological parentage of the child. Pursuant to a stipulation in the dissolution proceedings, it was settled that appellant was not the child's biological father, appellant's name was removed from the birth certificate, and appellant was relieved of any duty of child support.

On June 16, 1998, appellant filed a complaint against Dr. Kong, alleging multiple causes of action arising out of the alleged artificial insemination. The causes of action included intentional infliction of emotional distress, negligent infliction of emotional distress, professional malpractice general negligence, violation of Family Code¹ section 7613, fraud, misrepresentation, invasion of privacy and "false light" (allowing appellant and others to think the child was appellant's biological child). The final cause of action alleged that all of the acts of Kong were done with malice, fraud and intent to oppress appellant, so as to entitle appellant to punitive damages.

On February 11, 1999, Kong filed a motion for judgment on the pleadings, arguing, inter alia, that he owed no duty to appellant, who was never his patient. At oral argument of the motion, the court agreed with Dr. Kong. Appellant asked for leave to amend. The court stated: "What you are not going to plead is that the father here provided sperm." Appellant's counsel agreed that he could not plead that fact, and asked to amend to plead other provisions of the Family Code and a Health and Safety Code section regarding transmission of confidential information. The court denied the request, finding that absent a relationship between appellant and the doctor that would give rise to a duty, appellant could plead no viable cause of action. Judgment was entered, and this appeal followed.

DISCUSSION

On appeal from a judgment on the pleadings, we accept as true all well-pleaded allegations in the complaint and matters properly subject to judicial notice. (American Airlines, Inc. v. County of San Mateo (1996) 12 Cal.4th 1110, 1118, 51 Cal.Rptr.2d 251, 912 P.2d 1198; Edwards v. Centex Real Estate Corp. (1997) 53 Cal. App.4th 15, 27, 61 Cal.Rptr.2d 518.) The motion should be granted only if the complaint fails to state a cause of action. (5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 954, pp. 410-111.) Because the purpose of a motion for judgment on the pleadings is to test the sufficiency of the pleadings, the court does not consider factual information outside the complaint and the judicially noticed matters.²

We stress at the outset that this case is not about a couple who jointly sought a doctor's advice and services regarding artificial insemination.³ Appellant concedes that his wife sought respondent's services without his knowledge.⁴ It is not a case where the wrong sperm was used instead of the husband's sperm delivered to a doctor for use in artificial insemination of his wife.⁵ Appellant concedes this point as well. Appellant was not the patient of Dr. Kong, did not participate in the procedure and had no contact with the doctor. Finally, this is not a disciplinary matter against a physician for improper sexual relations with a patient. The facts alleged in the complaint merely disclose that appellant's ex-wife lied to her husband about the parentage of a child born during the marriage after seeking artificial insemination from Dr. Kong.

Appellant's arguments in support of reversal of the judgment are primarily based on his contention that a physician who performs artificial insemination on a married woman has a duty to obtain the husband's consent. Appellant proposes several methods of imposing liability on Dr. Kong. He relies on section 7613, the relationship between the parties, an emotional distress claim and an intentional tort theory. "A duty of care may arise through statute, contract, the general character of the activity, or the relationship between the parties." (Alexandria S. v. Pacific Fertility Medical Center, Inc. (1997) 55 Cal.App.4th 110, 116, 64 Cal.Rptr.2d 23.) However, appellant has not identified any cognizable basis for imposition of a duty on the part of his ex-wife's doctor.

Section 7613 Does Not Apply To This Case

Appellant argues that the duty of a physician who performs an artificial insemination is codified in section 7613. He contends that the statute mandates that a physician must obtain the written consent of the husband of any artificial insemination patient. According to appellant, section 7613 defines a duty, which was breached by Dr. Kong.

Section 7613 is a part of the Uniform Parentage Act (UPA). The statute provides: "(a) 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.

"(b) 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 is treated in law as if he were not the natural father of a child thereby conceived."

The California UPA was designed to equalize the status of legitimate and illegitimate children, and is concerned with the legal paternity of children conceived by artificial insemination. (See De Haan, Whose Child Am I? A Look At How Consent Affects A Husband's Obligation To Support A Child Conceived Through Heterologous Artificial Insemination (1999) 37 Brandeis L.J. 809.) "As with the UPA, section 7613 does not address the physician's liability; furthermore, a review of the legislative history of this statute does not illuminate the Legislature's intent regarding the scope of the physician's tort liability." (Alexandria S. v. Pacific Fertility Medical Center, Inc., supra, 55 Cal. App.4th 110, 119, 64 Cal.Rptr.2d 23; see generally Annot., Rights and Obligations Resulting From Human Artificial Insemination (1991) 83 A.L.R.4th 295.)

In the comment accompanying the text of the UPA, from which section 7613 was taken, it is noted that: "This Act does not deal with many complex and serious legal problems raised by the practice of artificial insemination." (9B West's U. Laws Ann. (1987) U. Parentage Act, com. to § 5, p. 302.) The clear words of section 7613 limit its application to determination of the identity of a child's father, and do not address the liability of a doctor. The statute provides a method for obtaining consent before imposing the duties of a father on the husband of a married woman who undergoes artificial insemination. It also insulates a donor of semen from parental liability when the parties comply with its provisions. The statute does not apply if consent is not obtained for the procedure. (Jhordan C. v. Mary K. (1986) 179 Cal.App.3d 386, 398, 224 Cal.Rptr. 530 [statute inapplicable where parties failed to invoke its protection].) Contrary to appellant's unsupported argument, the...