Stiver v. Parker
| Decision Date | 21 December 1992 |
| Docket Number | No. 90-1624,90-1624 |
| Citation | 975 F.2d 261 |
| Parties | Judy M. STIVER and Ray E. Stiver, Cross Plaintiffs-Appellants, v. Philip J. PARKER, M.D.; John R. Hayes; W.J. Ringold, M.D.; L.C. Jorge, M.D.; C.M. Decespedes, M.D.; and Noel P. Keane, Third-Party Defendants-Appellees, Alexander Malahoff, Counter Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Mark Chessman, Warren, Mich., for plaintiff-appellee.
John B. DeMoss, Mt. Clemons, Mich., for intervenor-appellee.
Wiley E. Bean (argued & briefed), Patricia D. Bean, Bean & Bean, Grand Ledge, Mich., for defendants-appellants Ray E. Stiver and Judy M. Stiver.
Thomas G. Parachini (briefed), Marjorie L. Kolin, Miller, Canfield, Paddock & Stone, Detroit, Mich., for defendant-appellee Noel P. Keane.
Edward C. Reynolds, Jr. (briefed), Priscilla L. Schwarze, (briefed), Schureman, Frakes, Glass & Wulfmeier, Detroit, Mich., for defendant-appellee Philip J. Parker, M.D.
Anthony G. Arnone (argued), Mark W. Peyser, Susan Healy Zitterman (briefed), Kitch, Saurbier, Drutchas, Wagner & Kenney, Detroit, Mich., for defendant-appellee John R. Hayes.
Jon P. Desenberg, David J. Franks (argued & briefed), Moll, Desenberg & Bayer, Detroit, Mich., for defendants-appellees W.J. Ringold, L.C. Jorge and C.M. Decespedes.
Before: MERRITT, Chief Judge, KENNEDY and JONES, Circuit Judges.
The Michigan legislature by statute has now criminalized "surrogate" parent contracts under which a woman agrees to give birth and then to transfer her child to another for a fee. 1 Prior to the enactment of the statute, the defendant, Noel Keane, as a broker, engaged Judy Stiver under such a contract to have a baby for Alexander Malahoff. Judy Stiver was artificially inseminated with Malahoff's semen, and a baby, Christopher, was born. By mistake, however, Stiver's husband was the father, not Malahoff. Christopher Stiver had an active cytomegalovirus (CMV) infection when he was born, secreting CMV in his urine. 2 He was diagnosed as suffering from cytomegalic inclusion disease (CID) at birth. 3 He was born microcephalic and suffers from hearing loss, mental retardation, and severe neuro-muscular disorders. No one disputes that Christopher's cytomegalic inclusion disease resulted from Judy Stiver's exposure to and contraction of cytomegalovirus, probably near the time of conception or early during her pregnancy. 4 Cytomegalovirus can be sexually transmitted, 5 although it is also transmitted through other body fluids. 6
The Stivers believe the source of Judy Stiver's exposure was Alexander Malahoff's semen, and have sued Keane and four doctors and a lawyer who participated in Keane's surrogacy program for negligence. The defendants defend generally on two grounds: (1) that they owed no duty of care to the Stivers and (2) that the Stivers cannot prove the program caused their harm.
This is a negligence, not a strict liability or breach of warranty action. The question in this diversity action under Michigan law is whether the Stivers' negligence action against Keane and the other participating program professionals should go to the jury, or whether the District Court was correct in dismissing the action on motion for summary judgment. The case raises issues of first impression concerning the legal rights and duties of all those involved in such surrogate arrangements. We conclude under the Michigan law of negligence that the defendants owed an affirmative duty to act to protect the plaintiffs against harm, a duty that may have been breached. The court below was incorrect in removing the case from the jury. We therefore reverse and remand for jury trial as to Keane and the other professionals.
In the original lawsuit in this case the Stivers brought a claim against Malahoff. They asserted that his failure to be tested for CMV resulted in their severe emotional and financial losses. They also brought a claim against him for intentional infliction of emotional distress. Although the Stivers' notice of appeal named Malahoff, their brief on appeal has no assignment of error against Malahoff, and we find their appeal as to Malahoff waived.
In his surrogacy business Keane operated both as a lawyer for the contracting father and as the manager of a business. Keane drafted and used two standard form contracts in his surrogacy program: the first, a contract between himself and the prospective father and the second, a contract between the prospective father and surrogate mother. Under the contract with the prospective father Keane agreed to locate and negotiate an agreement with a prospective surrogate mother. Under this contract he also agreed to draft the second contract which governs the surrogacy agreement itself. In addition he agreed to represent the contracting father in matters related to the transfer of the child to the contracting father and in having the contracting father's name placed on the child's birth certificate. If insemination was not successful, Keane was obliged to negotiate with additional prospective surrogate mothers. In addition to his role as the recruiter of prospective surrogate mothers, lawyer for the contracting father, and drafter of the surrogacy agreement, Keane organized the rest of the program. He sent the woman, and her husband if she was married, to a psychiatrist, Phillip J. Parker, who was to screen the woman as to likely success as a surrogate mother and to counsel her and her husband if she entered into a surrogacy agreement. He arranged with a group of doctors, W.J. Ringold, L.C. Jorge, and C.M. Decespedes, to take care of the medical aspects of the surrogacy program and made appointments with the prospective surrogate mother to see them. The program also provided a lawyer, John R. Hayes, for the woman. If the woman agreed to become a surrogate mother and insemination was successful, Keane supervised the woman's compliance with the contract and continued to oversee the details of the program. The contracting father was to pay Keane a nonrefundable fee of $5,000, as well as his share of the program expenses. Estimates of those expenses totalling approximately $3,500 were appended to the contract: paternity testing--$550; psychiatric testing of prospective surrogate mother--$250; medical exam for surrogate mother--$200; insemination--$1800; surrogate's attorney fees--$300; and pro rata share of program's advertising costs to locate surrogates--$300.
The second standard contract, the one between the surrogate mother and the contracting father, set out obligations for both parties. Although the prices charged may generally reflect the actual sales price of babies in the marketplace, it was a one-sided contract favoring the father in the sense that the surrogate mother was to assume all of the risks of injury or loss. It required the woman to be artificially inseminated and to carry the baby to term unless, after in utero testing, the father wished the mother to terminate the pregnancy in the event of genetic or congenital malformation of the child. The woman was to refrain from becoming attached emotionally to the child and then surrender the child to the father at birth. She "assumed all risks" of pregnancy and childbirth and postpartum complications, including death. A boilerplate addendum to the contract listed as possible risks several hundred infections and diseases, including leukemia, Hodgkins' disease, pneumonia, tuberculosis, sickle cell anemia, ulcerative colitis, and systemic lupus erythematusus. Buried in the middle of this boiler plate of risks assumed was cytomegalovirus. The risks also included venereal diseases with several specific diseases itemized. The addendum also advised that the prospective surrogate mother should not sign the contract unless she had talked to her own independent obstetrician and was certain the risks were small enough so that she should sign. Under this contract the father was to deposit $10,000 in escrow with Keane to be paid to the mother, for her services, on surrender of the child. If she miscarried before the end of the fourth month, she was to be paid no part of the fee. In case of miscarriage, still birth, or death of the child after the completion of the fourth month, the mother was to receive $1000 of that fee.
This second contract required both parties to
undergo a complete physical and genetic evaluation, under the direction and supervision of a licensed physician, to determine whether the physical health and well being of each is satisfactory. Said physical examination shall include testing for venereal diseases, specifically including syphilis and gonorrhea. Said venereal disease testing shall be done prior to each insemination.
In addition to these provisions aimed at the health of the child, the woman agreed to follow medical instructions, to go to a specified number of prenatal exams, and not to smoke, drink alcoholic beverages, or use illegal drugs nor non-prescription or prescription drugs without written consent of her doctor.
Keane's program included no written plan or instructions to the parties or other program participants, no description of responsibility. There was no description of who was to give information to the prospective surrogate mother or what information was to be provided. The program had no written directive, for example, as to counselling on fertility or the risks inherent in artificial insemination generally or particularly as those risks might occur in a surrogacy context. Moreover, the professionals apparently kept no written records beyond notes as to procedures administered. They kept no narrative as to advice or counseling they gave or as to questions they asked of the prospective surrogate mother. There also was no written plan for testing the semen nor even a directive to test the contracting father for any sexually transmitted...
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