Soos v. Superior Court in and for County of Maricopa
| Decision Date | 08 December 1994 |
| Docket Number | No. 1,CA-SA,1 |
| Citation | 182 Ariz. 470,897 P.2d 1356 |
| Parties | , 63 USLW 2390 Ronald A. SOOS, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, the Honorable Pamela J. Franks, a judge thereof, Respondent Judge, Pamela J. SOOS and Debra Ballas, Real Parties in Interest. 94-0068. |
| Court | Arizona Court of Appeals |
This is a Petition for Special Action from the trial court's order declaring the surrogate parentage contracts statute unconstitutional and ordering an evidentiary hearing to determine which person would be the better "mother" for the triplets. Petitioner Ronald A. Soos ("the Father") contends that the trial court erred as a matter of law in holding the statute unconstitutional and that she exceeded her jurisdiction and legal authority. We disagree and find that the statute violates the Equal Protection Clause of the United States and Arizona Constitutions. We previously accepted jurisdiction and denied relief with an Opinion to follow. This is that Opinion.
The Father and his then wife, Pamela J. Soos ("the Mother"), entered into a surrogate parentage contract with Debra Ballas ("the Surrogate") 1 because the Mother was unable to have children because of a partial hysterectomy. Eggs were removed from the Mother and fertilized in vitro (in a test tube) by sperm obtained from the Father. Pursuant to a "Host Uterus Program" at the Arizona Institute of Reproductive Medicine, the fertilized eggs were implanted in the Surrogate. The Surrogate became pregnant with triplets.
During the pregnancy of the Surrogate, the Mother filed a petition for dissolution of marriage requesting shared custody of the unborn triplets. The Father responded to the petition, alleging that he was the biological father of the unborn triplets, and that pursuant to A.R.S. section 25-218 (1991), the Surrogate was the legal mother of the triplets. The Father further alleged that since the Surrogate was the legal mother of the triplets, the Mother had no standing to request custody.
In September of 1993, the Surrogate gave birth to triplets. The Father and the Surrogate filed a request for order of paternity with the Maricopa County Superior Court. An order was entered naming the Father as the natural father of the triplets, and the Father took custody of the triplets.
The Mother responded by filing a motion for appointment of counsel for the triplets, a motion for temporary emergency visitation, and a motion to consolidate the dissolution proceeding with the paternity action. In her motions, the Mother attacked the constitutionality of A.R.S. section 25-218(B) declaring the Surrogate to be the legal mother. The trial court in its minute entry said:
THE COURT FINDS that there is not a compelling state interest that justifies terminating the substantive due process rights of the genetic mother in such a summary fashion.
The current law could leave a child without any mother, as a gestational mother may have no desire to do more than she was hired to do, which is to carry and give birth to a child. The current law also ignores the important role that generations of genetics may play in the determination of who a child is and becomes. The current law does not consider what is in the best interest of each individual child.
THE COURT FINDS A.R.S. § 25-218(B) to be unconstitutional.
An evidentiary hearing was set to determine which mother could better assume the social and legal responsibilities of motherhood. The trial court also ordered that the Mother have visitation rights with the triplets, and that the triplets would remain in the temporary custody of the Father. Following the denial of a motion for reconsideration, the Father filed this Petition for Special Action.
As a threshold question, we address our special action jurisdiction. For two reasons, we have special action jurisdiction. First, the Father has no equally plain, speedy, or adequate remedy by appeal. See Ariz.Rev.Stat.Ann. ("A.R.S.") section 22-375(B) (1990); Arizona Rules of Procedure for Special Actions 1(a) (1988); State ex rel. McDougall v. Riddel, 169 Ariz. 117, 117, 817 P.2d 62, 62 (App.1991). Second, we accepted jurisdiction because the constitutionality of the surrogate statute is an issue of first impression and a matter of statewide importance. See Duquette v. Superior Court, 161 Ariz. 269, 271, 778 P.2d 634, 636 (App.1989); Large v. Superior Court, 148 Ariz. 229, 714 P.2d 399 (1986) ().
The Father raises three issues.
1. Did the trial court err as a matter of law in holding A.R.S. section 25-218(B) unconstitutional?
2. Did the trial court exceed her jurisdiction and legal authority, make an arbitrary and capricious decision, and abuse her discretion in ordering an evidentiary hearing to determine who would be the better mother?
3. If A.R.S. section 25-218 is constitutional, did the trial court exceed her jurisdiction and legal authority, make an arbitrary and capricious decision, and abuse her discretion in ordering visitation rights to the Mother?
The Mother responded to the Father's petition alleging that A.R.S. section 25-218(B) violated her due process, equal protection, and privacy rights guaranteed by the United States and Arizona Constitutions. The Surrogate also filed a response to the petition, joining the Father in his petition. We agree with the trial court and the Mother that A.R.S. section 25-218(B) is unconstitutional because it violates the Mother's equal protection rights.
A.R.S. section 25-218 provides in relevant part:
A. No person may enter into, induce, arrange, procure or otherwise assist in the formation of a surrogate parentage contract.
B. A surrogate is the legal mother of a child born as a result of a surrogate parentage contract and is entitled to custody of that child.
C. If the mother of a child born as a result of a surrogate contract is married, her husband is presumed to be the legal father of the child. This presumption is rebuttable.
(Emphasis added.) This statute was fashioned after the Michigan statute and enacted for the purpose of prohibiting surrogate parentage contracts. See minutes from House Committee on Judiciary, 39th Legis., 1st Sess. (H.B. 2360 April 4, 1989). The minutes of the House Committee on Human Resources & Aging meeting of February 16, 1989, and the minutes of the House Committee on Judiciary of April 4, 1989, reflect the governmental interests in prohibiting surrogate contracts. The statute was designed to stop "baby brokers" and to stop the trafficking of human beings.
The question before us is whether the State's reasons for enacting the surrogate parentage contracts statute are sufficient to withstand constitutional scrutiny under the due process, equal protection, and privacy rights guaranteed by the United States and Arizona Constitutions. We must keep in mind that we are dealing with a custody issue between the biological mother and biological father and the constitutional issues surrounding their competing interests. This is not a case of the surrogate mother versus the biological mother. We are not dealing with the constitutional questions that arise when the surrogate mother wishes to keep the child she bore. Thus, we limit ourselves to the question of whether the statute withstands constitutional scrutiny when it affords a biological father an opportunity to prove paternity and gain custody, but does not afford a biological mother the same opportunity.
We first address the equal protection argument. The Mother argues that A.R.S. section 25-218 unconstitutionally denies her the right to equal protection of the laws. The Equal Protection Clause of the Fourteenth Amendment of the United States Constitution denies "to states the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute." Reed v. Reed, 404 U.S. 71, 75-76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225 (1971).
In reviewing the statute, we must determine which of three standards applies. The first standard is a strict scrutiny test. It is applied to statutes that involve a suspect class or impinge on a fundamental right. Bryant v. Continental Conveyor & Equip. Co., Inc., 156 Ariz. 193, 196, 751 P.2d 509, 512 (1988); Church v. Rawson Drug & Sundry Co., 173 Ariz. 342, 349, 842 P.2d 1355, 1362 (App.1992). The second standard of review, the means-end scrutiny, has been limited to classifications involving gender and illegitimacy of birth. Church at 342, 842 P.2d at 1362. The final standard, the rational basis test, is used when the legislation does not involve a suspect classification or a fundamental right. Id. at 350, 842 P.2d at 1363.
We are dealing with a statute that affects one of the basic civil rights. The due process clauses of the state and federal constitutions, together with the rights emanating from the guarantees of the Bill of Rights, protect "individual decisions in matters of childbearing from unjustified intrusion by the State." Carey v. Population Ser. Int'l, 431 U.S. 678, 687, 97 S.Ct. 2010, 2017, 52 L.Ed.2d 675 (1977); Stewart v. Maricopa County Superior Court, 163 Ariz. 227, 787 P.2d 126 (1989); Doe v. Attorney Gen., 194 Mich.App. 432, 487 N.W.2d 484, 486 (1992). "Marriage and procreation are fundamental to the very existence and survival of the race." Skinner v. Oklahoma, 316...
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