Opinion
No. FA 06 4004782 S
December 7, 2007
MEMORANDUM OF DECISION
The parties are before the court with regard to the defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction (#109). The defendant Anne E. D'Alleva moves for the dismissal of the plaintiff Michael J.L.M. Browne's Application for Custody/Visitation filed in this court on August 14, 2006. At issue is whether or not this court should grant the defendant's motion on the basis that the plaintiff, a known or identified sperm donor, not married to the unmarried defendant lacks standing to pursue an application for visitation and shared custody since he is not the "legal" father of the minor child, but only the "genetic" or biological father.
The defendant, Michael J.L.M. Browne, a/k/a Liam Browne, has filed a petition for custody and access with the superior court at Putnam regarding the minor child Peter James D'Alleva Bochain born on May 21, 2005, and conceived through artificial insemination. Therein the plaintiff alleges that he and the defendant, Anne E. D'Alleva are the parents of this child. The plaintiff, an international banker and resident of the United Kingdom, requests joint legal custody of the minor child as well as visitation with the minor child who will continue to reside with the defendant and her Civil Union partner, Cathy Bochain, in Windham, Connecticut.
In her affidavit appended to the present motion the defendant alleges that she and the plaintiff have been friends since 1983 when they were undergraduates students at Harvard University. Their friendship continued post-graduation when they shared vacations in Europe. The defendant and her life partner, Cathy Bochain were united in a Civil Union on October 14, 2005 in Connecticut. The plaintiff has a partner, Piotr Piecha, with whom he resides in Europe. The defendant and Ms. Bochain, desiring to create a family that included children, approached Mr. Browne in 2003 and asked him to consider acting as a sperm donor to allow the defendant to give birth to a child. As a part of their agreement Ms. D'Alleva alleges that she and Ms. Bochain would adopt the child and Mr. Browne and Mr. Piecha "would have some type of role as co-guardians," that Mr. Browne and Mr. Piecha "would have a role as secondary or "fun parents" and that the defendant and Ms. Bochain would be the primary parents." Mr. Browne also filed an affidavit with his motion which tracks many of the assertions made by the defendant but also differs in some critical respects. He does not assert that the defendant and Ms. Bochain were to adopt the minor child and that his role would be that of a secondary or "fun" parent. He claims that he was told that he would be a legal guardian of the child and that he would have a permanent and significant role in the child's life. All these factual claims by both parties were prior to the sperm donation and none were reduced to writing (other than letters) much less to the format of a legal agreement.
In June of 2003 the plaintiff and defendant went to the Center For Advanced Reproductive Services, P.C. ("the Center") at the University of Connecticut Health Center in Farmington, Connecticut, whereby the plaintiff agreed to be an identified sperm donor and the defendant agreed to be impregnated with the donor's sperm. The Center requires the parties to fill out a consent form prior to the procedure which contains boilerplate language setting forth the agreement between the Center and the plaintiff and defendant. This form also contains a waiver of the donor's rights should a child be conceived by the procedure ". . . by my signature below, I give up all rights and claims to such a child." The form is dated June 13, 2003. The minor child was born on May 21, 2005. Mr. Browne was present at the birth. Ms. D'Alleva signed an Acknowledgment of Paternity subsequent to the birth. Thus Mr. Browne was listed on the minor child's birth certificate as the child's father.
In September of 2005 Mr. Browne refused to sign the documents necessary to effectuate the adoption of the child by Ms. Bochain.
Litigation thereafter ensued.
On July 11, 2006, the defendant had filed an application in the Hampton Probate Court to terminate the plaintiff's parental rights. This case was transferred to the Superior Court for Juvenile Matters in Willimantic on the plaintiff's motion dated August 1, 2006. The plaintiff filed the instant matter for custody and access with the Superior Court at Putnam dated July 27, 2006. A stay was granted on the plaintiff's custody and access application on October 27, 2006. As a result and following the defendant's voluntary withdrawal of the termination proceeding on April 13, 2007, the plaintiff filed a motion to restore his application for custody and visitation to the docket, to which the defendant objected.
In their pleadings, the parties have alleged additional facts. The defendant alleges that in response to her request of the plaintiff to act as an identified sperm donor, the plaintiff and the defendant executed a contract on June 10, 2003 with the University of Connecticut Medical Center, Center for Advanced Reproductive Services entitled "Consent to Act as An Identified Sperm Donor." The plaintiff claims that his willingness to be an identified sperm donor was based on his understanding that the defendant intended him to have an ongoing role in the child's life and be known as the child's father. The plaintiff signed the consent form to use his sperm for the artificial insemination or AID procedure and that if the sperm utilized resulted in the birth of a child, "by [his] signature below, [he would] give up all rights and claims to such a child." He also read the final paragraph in the consent form, which states: "Acting as an identified sperm donor has been explained to me, together with the known risks. I understand the explanation that has been given to me. I have had the opportunity to ask any questions I might have and those questions have been answered to my satisfaction . . . I acknowledge that `Acting as an Identified Sperm Donor' is being performed at my request and with my consent." The document was signed by the plaintiff and witnessed. Preinsemination counseling and education to the parties and the defendant's civil partner was provided by the medical center. The center also recommended that they should seek legal assistance prior to the AID procedure. This was never done. Pursuant to the protocol of the medical center, the sperm from the plaintiff was held in quarantine for six months before usage. The defendant alleges that it was her intent that following the birth of the child, the parental rights of the plaintiff were to be terminated allowing her civil partner to adopt the child. It is claimed that this intent was evidenced by the name chosen for the child to be "D'Alleva-Bochain." It was also agreed, however, that the plaintiff would play a role in the child's life in that he would have visitation privileges that were to be memorialized in an agreement. The child was born on May 21, 2005. The child's paternity was acknowledged by the mother as well as the father under oath to the State of Connecticut, Department of Public Health on its prescribed form on May 26, 2005. As a result of this acknowledgment the birth certificate identifies the plaintiff as the biological father because, as declared by the defendant, there never was a question as to the identity of the sperm donor. The plaintiff and defendant executed an "Acknowledgment of Paternity" pursuant to General Statutes § 46b-172.
The purpose of these consent forms is to limit the liability of the center providing this procedure. It was a form prepared by the Center and signed by the parties to the procedure as one side and the Center on the other.
Sec. 46b-172. (Formerly Sec. 52-442a). Acknowledgment of paternity and agreement to support; judgment. Review of acknowledgment of paternity. (a)(1) In lieu of or in conclusion of proceedings under section 46b-160, a written acknowledgment of paternity executed and sworn to by the putative father of the child when accompanied by (A) an attested waiver of the right to a blood test, the right to a trial and the right to an attorney, and (B) a written affirmation of paternity executed and sworn to by the mother of the child shall have the same force and effect as a judgment of the Superior Court. It shall be considered a legal finding of paternity without requiring or permitting judicial ratification and shall be binding on the person executing the same whether such person is an adult or a minor, subject to subdivision (2) of this subsection. Such acknowledgment shall not be binding unless, prior to the signing of any affirmation or acknowledgment of paternity, the mother and the putative father are given oral and written notice of the alternatives to, the legal consequences of, and the rights and responsibilities that arise from signing such affirmation or acknowledgment. The notice to the mother shall include, but shall not be limited to, notice that the affirmation of paternity may result in right of custody and visitation, as well as a duty of support, in the person named as father. The notice to the putative father shall include, but not be limited to, notice that such father has the right to contest paternity, including the right to appointment of counsel, a genetic test to determine paternity and a trial by the Superior Court or a family support magistrate and that acknowledgment of paternity wilt make such father liable for the financial support of the child until the child's eighteenth birthday. In addition, the notice shall inform the mother and the father that DNA testing may be able to establish paternity with a high degree of accuracy and may, under certain circumstances, be available at state expense. The notices shall also explain the right to rescind the acknowledgment, as set forth in subdivision (2) of this subsection, including the address where such notice of rescission should be sent, and shall explain that the acknowledgment cannot be challenged after sixty days, except in court upon a showing of fraud, duress or material mistake of fact. (2) The mother and the acknowledged father shall have the right to rescind such affirmation or acknowledgment in writing within the earlier of (A) sixty days, or (B) the date of an agreement to support such child approved in accordance with subsection (b) of this section or an order of support for such child entered in a proceeding under subsection (c) of this section. An acknowledgment executed in accordance with subdivision (1) of this subsection may be challenged in court or before a family support magistrate after the rescission period only on the basis of fraud, duress or material mistake of fact which may include evidence that he is not the father, with the burden of proof upon the challenger. During the pendency of any such challenge, any responsibilities arising from such acknowledgment shall continue except for good cause shown. (3) All written notices, waivers, affirmations and acknowledgments required under subdivision (1) of this subsection, and rescissions authorized under subdivision (2) of this subsection, shall be on forms prescribed by the Department of Public Health, provided such acknowledgment form includes the minimum requirements specified by the Secretary of the United States Department of Health and Human Services. All acknowledgments and rescissions executed in accordance with this subsection shall be filed in the paternity registry established and maintained by the Department of Public Health under section 19a-42a. (4) An acknowledgment of paternity signed in any other state according to its procedures shall be given full faith and credit by this state.
(b)(1) An agreement to support the child by payment of a periodic sum until the child attains the age of eighteen years or as otherwise provided in this subsection, together with provisions for reimbursement for past-due support based upon ability to pay in accordance with the provisions of subsection (b) of section 17b-179, or section 17a-90, 17b-81, 17b-223, 46b-129 or 46b-130, and reasonable expense of prosecution of the petition, when filed with and approved by a judge of the Superior Court, or in IV-D support eases and matters brought under sections 46b-212 to 46b-213v, inclusive, a family support magistrate at any time, shall have the same force and effect, retroactively or prospectively in accordance with the terms of said agreement, as an order of support entered by the court, and shall be enforceable and subject to modification in the same manner as is provided by law for orders of the court in such cases. If such child is unmarried and a full-time high school student, such support shall continue according to the parents' respective abilities, if such child is in need of support, until such child completes the twelfth grade or attains the age of nineteen, whichever occurs first. (2) Past due support in such cases shall be limited to the three years next preceding the date of the filing of such agreements to support. (3) Payments under such agreement shall be made to the petitioner, except that in IV-D support cases, as defined in subsection (b) of section 46b-231, payments shall be made to the Bureau of Child Support Enforcement or its designated agency and distributed as required by Title IV-D of the Social Security Act. In IV-D support cases, the IV-D agency or a support enforcement agency under cooperative agreement with the IV-D agency may, upon notice to the obligor and obligee, redirect payments for the support of any child receiving child support enforcement services either to the state of Connecticut or to the present custodial party, as their interest may appear, provided neither the obligor nor the obligee objects in writing within ten business days from the mailing date of such notice. Any such notice shall be sent by first class mail to the most recent address of such obligor and obligee, as recorded in the state case registry pursuant to section 46b-218, and a copy of such notice shall be filed with the court or family support magistrate if both the obligor and obligee fail to object to the redirected payments within ten business days from the mailing date of such notice. (4) Such written agreements to support shall be on forms prescribed by the Office of the Chief Court Administrator and shall be sworn to, and shall be binding on the person executing the same whether he is an adult or a minor.
(c)(1) At any time after signing of any acknowledgment of paternity, upon the application of any interested party, the court or any judge thereof or any family support magistrate in IV-D support cases and in matters brought under sections 46b-212 to 46b-213v, inclusive, shall cause a summons, signed by such judge or family support magistrate, by the clerk of the court or by a commissioner of the Superior Court, to be issued, requiring the acknowledged father to appear in court at a time and place as determined by the clerk but not more than ninety days after the issuance of the summons, to show cause why the court or the family support magistrate assigned to the judicial district in IV-D support cases should not enter judgment for support of the child by payment of a periodic sum until the child attains the age of eighteen years or as otherwise provided in this subsection, together with provision for reimbursement for past-due support based upon ability to pay in accordance with the provisions of subsection (b) of section 17b-179, or section 17a-90, 17b-81, 17b-223, 46b-129 or 46b-130, a provision for health coverage of the child as required by section 46b-215, and reasonable expense of the action under this subsection. If such child is unmarried and a full-time high school student such support shall continue according to the parents' respective abilities, if such child is in need of support, until such child completes the twelfth grade or attains the age of nineteen, whichever occurs first. (2) Past-due support in such cases shall be limited to the three years next preceding the filing of a petition pursuant to this section. Such court or family support magistrate, in IV-D support cases, may also order the acknowledged father who is subject to a plan for reimbursement of past-due support and is not incapacitated to participate in work activities which may include, but shall not be limited to, job search, training, work experience and participation in the job training and retraining program established by the Labor Commissioner pursuant to section 31-3t. (3) The application, summons and order shall be on forms prescribed by the Office of the Chief Court Administrator. Proceedings to obtain such orders of support shall be commenced by the service of such summons on the acknowledged father. A state marshal or proper officer shall make due return of process to the court not less than twenty-one days before the date assigned for hearing. (4) The prior judgment as to paternity shall be res judicata as to that issue for all paternity acknowledgments filed with the court on or after March 1, 1981, but before July 1, 1997, and shall not be reconsidered by the court unless the person seeking review of the acknowledgment petitions the superior court for the judicial district having venue for a hearing on the issue of paternity within three years of such judgment. In addition to such review, if the acknowledgment of paternity was filed prior to March 1, 1981, the acknowledgment of paternity may be reviewed by denying the allegation of paternity in response to the initial petition for support, whenever it is filed. (5) All payments under this subsection shall be made to the petitioner, except that in IV-D support cases, as defined in subsection (b) of section 46b-231, payments shall be made to the state, acting by and through the IV-D agency and distributed as required by Title IV-D of the Social Security Act. In IV-D support cases, the IV-D agency or a support enforcement agency under cooperative agreement with the IV-D agency may, upon notice to the obligor and obligee, redirect payments for the support of any child receiving child support enforcement services either to the state of Connecticut or to the present custodial party, as their interests may appear, provided neither the obligor nor the obligee objects in writing within ten business days from the mailing date of such notice. Any such notice shall be sent by first class mail to the most recent address of such obligor and obligee, as recorded in the state case registry pursuant to section 46b-218, and a copy of such notice shall be filed with the court or family support magistrate if both the obligor and obligee fail to object to the redirected payments within ten business days from the mailing date of such notice.
(d) Whenever a petition is filed for review of an acknowledgment of paternity of a child who is or has been supported by the state, and review of such acknowledgment of paternity is granted by the court pursuant to subsection (c) of this section, and upon review, the court or family support magistrate finds that the petitioner is not the father of the child, the Department of Social Services shall refund to the petitioner any money paid by the petitioner to the state during any period such child was supported by the state.
On June 11, 2007, the defendant filed a motion to dismiss the plaintiff's application for custody and access of the minor child pursuant to P.B. § 10-31 on the ground that pursuant to General Statutes § 45a-775, the sperm donor statute, he does not have standing, and, therefore, the court lacks subject matter jurisdiction. The plaintiff filed a memorandum of law in opposition on July 18, 2007. Additional reply memoranda of law were submitted by the plaintiff and the defendant. The motion to dismiss was heard at the short calendar on August 8, 2007.
At the hearing, the plaintiff rephrased the issue as to whether his acknowledgment of paternity provides him with standing to proceed and requests that the court consider what is in the best interest of the child.
DISCUSSION I. Standing
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006). "The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss"; St. George v. Gordon, 264 Conn. 538, 544, 825 A.2d 90 (2003); and "may be raised at any point in judicial proceedings." Stamford Hospital v. Vega, 236 Conn. 646, 656, 674 A.2d 821 (1996). "If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause." (Internal quotation marks omitted.) Missionary Society of Connecticut v. Board of Pardons Paroles, 278 Conn. 197, 201, 896 A.2d 809 (2006).
"Standing is the legal right to set judicial machinery in motion." (Internal quotation marks omitted.) Ganim v. Smith Wesson Corp., 258 Conn. 313, 347, 780 A.2d 98 (2001). "When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue and not whether the controversy is otherwise justiciable, or whether, on the merits, the plaintiff has a legally protected interest that the defendant's action has invaded." (Internal quotation marks omitted.) Connecticut Ass'n. of Boards of Education, Inc. v. Shedd, 197 Conn. 554, 558, 499 A.2d 797 (1985). It "is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented . . . These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity. Such a personal stake in the outcome of the controversy . . . provides the requisite assurance of concrete adverseness and diligent advocacy. The requirement of directness between the injuries claimed by the plaintiff and the conduct of the defendant also is expressed, in our standing jurisprudence, by the focus on whether the plaintiff is the proper party to assert the claim at issue." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 282 Conn. 791, 802-03, 925 A.2d 293 (2007).
The defendant moves to dismiss the plaintiff's application for visitation and joint custody on the ground that the plaintiff lacks standing to bring this action. The defendant argues that based on General Statutes §§ 46b-56 and 46b-61, which govern custody and visitation of a minor child, the plaintiff does not have standing since he is only the sperm donor, and, therefore not the child's natural parent. The defendant further argues that § 45a-775 is clear and unambiguous in its statement that the donor of sperm used in AID has no rights in the children born as a result. In response, the plaintiff filed a memorandum in opposition on July 18, 2007. He argues that the motion to dismiss should be denied because he has standing for the following reasons: (1) that the acknowledgment of paternity pursuant to § 46b-172 conclusively establishes that he is the child's biological and legal father, (2) that § 45a-775 applies only to a married woman who with the consent of her husband conceives a child through AID and does not apply to other procedures such as in vitro fertilization or to situations that would deprive the plaintiff of his parental rights without due process of law and in violation of his right to equal protection; and (3) that the defendant's claim regarding the plaintiff's consent on the form he signed for the AID is void against public policy because it is a contract of adhesion and purports to terminate parental rights without judicial action, and even if the contract was enforceable, the defendant has waived her right to enforce it by her subsequent conduct and her binding affirmation of the plaintiff's paternity in the Probate Court proceeding to terminate his parental rights.
Section 46b-56 addresses the custody and care of minor children in any controversy before the Superior Court. Section 46b-61 deals with the custody and care of minor children of parents who are living separately.
Section 45a-775. (Formerly Sec. 45-69j). No rights in donor of sperm. A donor of sperm used in AID, or any person claiming by or through him, shall not have any right or interest in any child born as a result of AID.
On August 6, 2007, the defendant filed a reply memorandum of law. Therein, she again argues that § 45a-775 does not provide him standing because (1) it is not clear from the legislative history that the statute only applies to married women inasmuch as the statute does not contain a limiting qualifier such as "to a woman with a husband"; (2) the plaintiff has not been denied due process inasmuch as the plaintiff agreed that the defendant's partner would adopt the child; he denies nothing in writing and (3) subject matter jurisdiction cannot be created by waiver, a birth certificate form or an acknowledgment of paternity. It should be noted that although the parties have made factual assertions in the pleadings and affidavits filed, sometimes conflicting, no evidentiary hearing was held. "It is well established in our jurisprudence that an evidentiary hearing may be appropriate with respect to a motion to dismiss. When issues of fact are necessary to the determination of a court's jurisdiction, due process requires that a trial-like hearing be held in which an opportunity is provided to present evidence and to cross-examine witnesses." (Internal quotation marks omitted.) Fennelly v. Norton, 103 Conn.App. 125, 152 (2007). While an evidentiary hearing was not required it may have been helpful in adequately defining the facts of this case prior to applying the law. Neither party requested such a hearing.
Thereafter, in response, the plaintiff filed a reply memorandum on August 7, 2007. He continues to argue that he has standing since he was able to block the adoption of the child by the defendant's partner, an implicit admission that he has cognizable parental rights. He further argues that it was always intended that he would be more than merely a sperm donor and his acknowledgment of paternity is a legal finding of paternity that is binding. Lastly, he maintains that § 45a-775 must be read in the context of the entire AID statutes, which clearly shows that the statute is intended to apply to children born through AID to married women whose husbands consent in writing to such a procedure to avoid the laws of "bastardy."
At issue is whether the court should grant the defendant's motion to dismiss the plaintiff's application for access to and shared custody of their minor child conceived through artificial insemination in which the plaintiff, who is not married to the defendant, is the known sperm donor and has acknowledged paternity of the child, on the ground that the plaintiff lacks standing since he is only the genetic father, and therefore, the court is without subject matter jurisdiction. The Superior Court has subject matter jurisdiction of an application for visitation and joint custody by the parents of a child pursuant to §§ 46b-56 and 46b-61.
See footnote 3.
The Superior Court also has subject matter jurisdiction of an application for visitation by "any person" pursuant to § 46b-59. Our Supreme Court, in Roth v. Weston, 159 Conn. 202, 89 A.2d 431 (2002), recently held that a non-parent may have standing to seek visitation by proving by clear and convincing evidence that there exists a relationship with the child that is similar in nature to a parent-child relationship, and that denial of the visitation would cause real and significant harm to the child. In Fennelly v. Norton, 103 Conn.App. 125, 144 (2007) cert. denied 284 Conn. 918, September 21, 2007, our Appellate Court, citing Fish v. Fish, 90 Conn.App. 744, 881 A.2d 342, cert. granted, 275 Conn. 924, 883 A.2d 1243 (2005) held that "the petition for child custody and the application for child visitation are two different animals." With custody "the paramount concern was the right of a fit parent to raise a child free of interference by the state and nonparents, the paramount concern in awarding custody is the best interest of the child." Id., 756-57. While P.A. 05-258 effectively overruled the holding in Roth v. Weston, 259 Conn. 202, 223 (2002) that the best interests of the child are secondary to the parents' rights, the Public Act read in conjunction with cases decided since still requires as a threshold matter in visitation cases by a non-parent require a foundational finding that the petitioner has a relationship with the child that is similar in nature to a parent-child relationship and, must also contain allegations that denial of the visitation will cause real and significant harm to the child. These allegations must be made by specific good faith allegations and must be proven by clear and convincing evidence. See Fennelly, supra, 130-33.
While the instant matter is not brought by a "third party" the requirements which must be met to permit visitation pursuant to § 46b-59 are enlightening.
In a situation where the court's jurisdiction is derived solely from a statue, a plaintiff not meeting the criteria established therein will be said to lack standing when the court's focus is upon the plaintiff. See Board of Pardons v. Freedom of Information Commission, 210 Conn. 646, 648-51, 556 A.2d 1020 (1989). When standing is challenged, the question to be resolved is whether the plaintiff is the proper party to request an adjudication of the issue. To determine whether the plaintiff has standing requires this court to examine § 46b-172 and § 45a-775.
Chapter 803a §§ 45a-771 through 45a-779 govern "Children Conceived Through Artificial Insemination." Section 45a-771(a) sets out the public policy of Connecticut to adhere "to the doctrine that every child born to a married woman during wedlock is legitimate." Subsection (b) states that the sections herein are to be construed as a "codification and clarification of such doctrine with respect to any child conceived as a result of heterologous artificial insemination." Section 45a-772(a) requires the procedure to be performed by "persons certified to practice medicine in this state" and subsection (b) requires "in writing the request and consent of the husband and wife" for the AID procedure. Section 45a-774 is entitled "Status of child born as result of AID." That statute provides: "All children born of the husband and wife who consented to and requested the use of AID are legitimate children." Section § 45a-775 entitled "No rights in donor of sperm" provides: "A donor of sperm used in AID, or any person claiming by or through him, shall not have any right or interest in any child born as a result of A.I.D."
Effective October 1, 2007, General Statutes §§ 45a-771 to 45a-779 were amended. Section 45a-775 was repealed and now provides: "An identified or anonymous donor of sperm or eggs used in AID, or any person claiming by or though such donor, shall not have any right or interest in any child born as a result of AID."
The purpose of the act when it was enacted in 1970 was to deal with the context of a husband and wife who chose artificial insemination with the sperm of a donor other than the husband. The act intended to clarify the rights of the parties involved as a result of a child being born within the marriage but not the genetic child of the husband of that marriage and to protect the conceived child from "bastardy."
An acknowledgment of paternity pursuant to § 46b-172(a) if executed and sworn to by the putative father and the mother of the child "shall have the same force and effect as a judgment of the Superior Court . . . It shall be considered a legal finding of paternity . . ." General Statutes § 46b-172(a). Although research has disclosed that the question before the court has not yet been determined by the appellate courts of Connecticut, different approaches with different results have been utilized by other jurisdictions in resolving this issue. Some of the courts have applied rules of statutory construction, considered the existence of an agreement or some writing between the parties regarding their intent and any subsequent relationship between the sperm donor and the child conceived, and/or determined the constitutionality of the statute as applied to the sperm donor. A review of those approaches is necessary.
While none of the cases are directly on point factually or procedurally with the instant matter they are instructive as to how various courts have dealt with similar issues arising from this nascent area of the law which is changing on almost a daily basis due to scientific advances in the area of human reproduction. The cases cited are those most closely analogous to this case. It should also be noted that a rehearing has been requested in the Kansas case of In Interest of K.M.H., 96, 102 (Kan. 10-26-2007).
In In re Sullivan, 157 S.W.3d 911 (Texas App.Ct. 2005), the court stated that the question of standing of a sperm donor should be decided as a part of the merits of the case and not as a threshold issue. Therein, the court concluded: "Based on the language of the statute [that allows a man alleging himself to be the father to maintain a parentage proceeding], the object sought to be obtained, the circumstances under which the statue was enacted, the legislative history, former statutory provisions, including laws on similar subjects, and the consequences of different constructions, we conclude that, at a minium [that statute, which does not exclude sperm donors] confers standing on a man alleging himself to be the biological father of the child in question and seeking an adjudication that he is the father of the child. We further conclude that under the statute, as drafted, the issue of the man's status as a donor . . . is to be decided at the merits stage of the litigation rather than as a part of the threshold issue of standing." Id., 919.
A factually similar case is Tripp v. Hinkley, 290 A.D.2d 767, 736 N.Y.S.2d (3d. Dept. 2002). In that case, the petitioner, the sperm donor, initiated a proceeding for more visitation of the two minor children. "Pursuant to [the] respondent's plan to form a family with her lesbian partner, [the] petitioner agreed that he would donate his sperm to artificially inseminate respondent, and that respondent and her partner would be the children's custodial parents while petitioner and his gay partner would have regular contact with the children." Id., 767. Following the birth of the two children, the petitioner acknowledged paternity and placed his name as the father on each of the child's birth certificate. Id. After the termination of their relationship, the petitioner filed this action to expand his rights of visitation from that which was originally stipulated. The parties had agreed that the respondent would retain physical custody of the children but that the petitioner would continue to have visitation with them Id., 768. The court held that visitation more frequently than what was included in their written agreement was in the best interest of the children based on evidence that included his regular contact with the children, that the children viewed him as their father and loved him, and that he had acknowledged paternity. Id. The court disagreed with the respondent that this evidence indicated that the petitioner was "merely a sperm donor, who should be restricted to the terms of the parties' written agreement." Id. The issue of the petitioner's standing, however, was not challenged.
On November 8, 2006, the Texas Appellate Court in In re H.C.S., 219 S.W.2d 33 (Tex.App.Ct. 2006), was confronted with the issue of "whether a sperm donor has standing to pursue a proceeding to adjudicate the parentage of a child conceived using the donor's sperm." Id., 34. The mother questioned the court's jurisdiction on the ground that he had no standing to bring the parentage proceeding because as a donor he is not a parent. Id. The "father" agreed to act as the sperm donor to artificially inseminate the mother with whom he had a relationship and both agreed verbally that he would not act merely as a donor but also be involved in the child's life. Id. Following the termination of their relationship and persistent denial of visitation, the "father" filed this lawsuit to adjudicate his parental rights. Id. The mother then challenged the jurisdiction of the court based on his lack of standing because, under the statute in the Family Code a sperm donor was precluded from adjudicating his parental rights. Id. The court applied the rules of statutory construction and stated that a prior case analyzed the relevant statutes by first determining whether donor status should even be a part of the inquiry on standing to maintain a parentage proceeding. Id., 35. The court disagreed with the prior case, In re Sullivan, supra, 157 S.W.3d 911, that concluded that the status as a donor was irrelevant to the question of standing to establish parentage. Id., 35-36. Instead, the court decided that the language of the Family Code was clear and as set forth meant that "an unmarried man who provided sperm used for assisted reproduction and who did not sign and file an acknowledgment of paternity, does not have standing to pursue a suit to determine paternity of the child born through assisted reproduction." Id., 36. Based on the definitions in the Family Code, which does permit an alleged father to file a suit for paternity, a "male donor" is not included in the definition of an "alleged father." Id. The court disagreed with the "father" that he was excluded from the statute because he is a "man whose paternity of the child is to be adjudicated" pursuant to the paternity statutes. Id. The court stated: "While J.S. is a man and his paternity as to [the minor child] has not been adjudicated, and while he alleges himself to be the father of [the minor child], he is admittedly a male donor and thus statutorily he is not an alleged father and does not have standing to pursue an original suit . . . Further, the standing provision J.S. relies on clearly states that it is subject to other provisions regarding voluntary acknowledgment of paternity. Those provisions allow a male donor to effectively become the parent of a child conceived by means of assisted reproduction if he and the mother of the child `sign [and file] an acknowledgment of paternity with the intent to establish the man's paternity.' . . . The parties to this suit did not execute and file an acknowledgment of paternity as permitted by the statute. Having failed to follow the statutory procedures for a male donor to determine parentage, J.S. cannot now circumvent the statutory plan for establishing paternity in assisted reproduction cases." (Citations omitted.) Id., 36-37. Absent an acknowledgment of paternity, the court determined that the "father" as a sperm donor had no standing.
The most recent case, In Interest of K.M.H, No. 96, 102, slip op. (Kan. October 26, 2007), reviewed an appeal regarding the constitutionality of its sperm donor statute from the granting of summary judgment in favor of the mother. The mother had wanted to become a parent through artificial insemination and solicited her friend to provide sperm for insemination. Id., slip op. 3. Although the donor argued that they had an oral agreement that granted him parental rights, the court found that they had no formal written contract concerning the donation of sperm, the artificial insemination, or the expectations of the parties as to the donor's parental rights. Id. Following the birth of the two twin children, the donor filed his paternity action with the trial court which concluded that he had no legal rights or responsibilities to the children pursuant to the donor statute because he had no written agreement to "opt-out" of the statute. That statute provides: "The donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor's wife is treated in law as if he were not the birth father of a child thereby conceived, unless agreed to in writing by the donor and the woman." K.S.A. 38-1114(f). In affirming the trial court, the Supreme Court first stated that standing to bring a paternity action by the donor was "not in serious doubt," and then reviewed the various states' laws governing the rights of sperm donors for artificial insemination, the constitutionality of these statutes, and the opt-out provision in the Kansas statute requiring a writing by the parties to overcome the bar against paternity. Id., slip op. 5-14.
In a well-reasoned historical review of the rights of the sperm donor, the Kansas Supreme Court discussed that the first line of statutes enacted pertained to married women and that the donor whose sperm was used for insemination would not be treated as the father of any child conceived but only the husband would bear all rights and obligations of paternity. Id., slip op. 8. Following a New Jersey case, C.M. v. C.C., 152 N.J.Super. 160, 377 A.2d 821 (1977), which relied on the common-law presumption of paternity to award the donor visitation rights as the natural father based on evidence that the parties had intended to parent the child conceived through artificial insemination, however, sperm donor statutes in other jurisdictions were modified to include an unmarried woman. Id., slip op. 9.
Since New Jersey had no applicable artificial insemination statutes, the court applied the best interests of the child standard.
The Kansas court next noted four cases of interest concerning the bar to donor paternity regardless of whether a married or unmarried woman was involved that included: Jhordan C. v Mary K., 179 Cal.App.3d 386, 224 Cal. Rptr. 530 (1986), In Interest of R.C., 775 P.2d 27 (Colo. 1989), McIntyre v. Crouch, 98 Or.App. 462, 780 P.2d 239 (1989), cert. denied, 495 U.S. 905, 110 S.Ct. 1924, 109 L.Ed.2d 288 (1990) and C.O. v. W.S., 64 Ohio Misc. 2d 9, 639 N.E.2d 523 (App.Ct. 1994). In the first case, the California court stated that, because the parties had no doctor involved in the donation or insemination, and, thus, the sperm was never "provided to a licensed physician," their factual scenario fell outside the statute and affirmed the lower court's recognition of the donor's paternity. Jhordan C. v. Mary K., supra, 179 Cal.App.3d 398.
California Civil Code § 7005, subd. (b) in effect provided in relevant part that "a donor of semen provided to a licensed physician 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 next case, In Interest of R.C., the Colorado district court had refused to admit proffered evidence of an agreement that the donor would act as a father based on relevancy; it granted the unmarried mother's motion to dismiss the donor's paternity suit based on the Colorado's statute. Even though the Colorado provision contained a blanket bar to donor parental rights; Colo. Rev. Stat. § 19-4-106); the Colorado Supreme Court reversed the district court explicitly rejecting the idea that an unmarried recipient lost the protection of the statute "merely because she [knew] the donor." In Interest of B.C., supra, 775 P.2d 35. It concluded that the statute was ambiguous and refused to apply its absolute bar to paternity because the known donor had produced evidence of an oral agreement that he was to be treated as the father of the child. Id. The court, however, declined to address the equal protection and due process challenges raised by the donor. Id.
In McIntyre v. Crouch, an unmarried woman had artificially inseminated herself with a known donor's semen. The donor sought recognition of his paternity, and both parties moved for summary judgment. At that time, the Oregon artificial insemination statute read; "If the donor of semen used in artificial insemination is not the mother's husband: (1) Such donor shall have no right, obligation or interest with respect to a child born as a result of the artificial insemination; and (2) A child born as a result of the artificial insemination shall have no right, obligation or interest with respect to the donor." Ore. Rev. Stat. § 109.239 (1977). The donor challenged this statute under both equal protection and due process grounds and, in support of his motion for summary judgment, the donor included an affidavit in which he attested that he had relied on an agreement with the mother that he "would remain active" in the child's life and "participate in all important decisions concerning the child." McIntyre v. Crouch, supra, 98 Or.App. 464. The donor sought visitation and said that he was willing and able to accept the same level of responsibility for the support, education, maintenance, and care of the child and for all pregnancy-related expenses that he would have had if the child had been born from his marriage to its mother. Id. Based on the Oregon statute, the district court ruled that the donor's paternity claim was barred. The Oregon Supreme Court in McIntyre began its analysis of the constitutionality of its sperm donor statute based on an equal protection challenge by applying a strict scrutiny standard of review. Under this standard, the court ruled that the statute drew an acceptable "classification of unmarried males and unmarried females . . . based on biological differences Only a male could contribute the sperm to accomplish conception; only a female could conceive and bear the child." McIntyre v. Crouch, supra, 98 Or.App. 469-70. Further, the court noted that the classification was rationally related to the purposes of the statute, which were: (1) to allow married couples to have children, even though the husband was infertile, impotent, or ill; (2) to allow an unmarried woman to conceive and bear a child without sexual intercourse; (3) to resolve potential disputes about parental rights and responsibilities: that is, (a) the mother's husband, if he consents, is father of the child, and (b) an unmarried mother is free from any claims by the donor of parental rights; (4) to encourage men to donate semen by protecting them against any claims by the mother or the child; and (5) to legitimate the child and give it rights against the mother's husband, if he consented to the insemination. Id., 467-68, 470. Thus, the court held that the statute did not offend equal protection either on its face or as applied. As for the due process challenge by the donor, the court stated that the statute on its face was not unconstitutional. Id., 470. The court, however, did conclude that as applied to him, a known donor who had an agreement with the mother to share the rights and responsibilities of parenthood, the statute would violate the due process clause of the fourteenth amendment if such an agreement was proved. Id., 470-72. The McIntyre court looked at the adoption statutes and the rights of an unwed father vis-a-vis his child and reasoned that the due process clause should afford no less protection to a sperm donor who had facilitated artificial insemination than an unwed father, "provided that [the sperm donor] could prove the facts" in a summary judgment affidavit that tended to support the existence of an agreement with the mother and the donor's reliance upon it. Id., 472. Because the court concluded the constitutionality of the Oregon statute as applied to this donor would turn on whether he was given an opportunity to establish those facts, summary judgment in favor of the mother was reversed. Id.
In the fourth case analyzed by the Kansas Supreme Court, it stated that the Ohio court in C.O. v. W.S. also concluded, as the McIntyre court had, that a statute purporting to be an absolute bar to paternity of sperm donors, while constitutional in the absence of an agreement to the contrary, could be unconstitutional as applied when the donor can establish that an agreement to share parenting existed between him and the unmarried woman who was the recipient of the sperm. C.O. v. W.S., supra, 64 Ohio Misc.2d 12. The Ohio statute at issue stated: "If a woman is the subject of a non-spousal artificial insemination, a donor shall not be treated in law or regarded as the natural father of a child conceived as a result of the artificial insemination, and a child so conceived shall not be treated in law or regarded as the natural child of the donor." Ohio Rev. Code Ann. § 3111.95 (Anderson 2003). The statute also required artificial insemination to be conducted under the supervision of a physician. C.O. v. W.S., supra 10-11. As in Jhordan C. v. Mary K., supra, an unmarried woman had inseminated herself with a known donor's sperm. Although the court ultimately determined that the statute was inapplicable because the mother had failed to comply with the physician involvement requirement, it further opined that the statute would violate due process if applied to the donor, because he and the mother, at the time of the procedure, had agreed there would be a relationship between the donor and the child. Id., 12.
Based on the above cases, the Kansas court addressed the issue as to whether § 38-114(f)'s requirement of a writing for the opt-out agreement between an unmarried mother and a known sperm donor resulted in an equal protection or due process constitutional violation. In Interest of K.M.H., supra, slip op. 14. The court examined the purpose of these statutes to protect the male donor from later unwanted claims for support from the mothers or the children and to protect the women recipients from potential claims of donors to parental rights and responsibilities in the absence of an agreement. Id., slip op. 15. The court stated that the Kansas statute necessitates the parties to "decide whether they will enter into a written agreement before any donation is made, while there is still balanced bargaining power on both sides of the parenting equation [and] [the court to determine whether] the statute's gender classification substantially furthers and is substantially related to these legitimate legislative purposes." Id., slip op. 16. Since the statute furthers these goals, the court concluded that there was no equal protection violation as it applied to the sperm donor. Id. As for the due process argument, the court addressed it as a substantive due process concern for the fundamental right to the care, custody and control of the sperm donor's children. Id. The court explained that the language of the statute allows a sperm donor to opt out or become and remain a father; it does not cut off rights that have already arisen because his parental rights arise only if there is a written agreement. Id., slip op. 17. In determining that there is no due process violation, however, the court observed that "all that is constitutional is not necessarily wise." Id.
Some of these same cases not only focused on the constitutionality of these statutes, but also on the rules of statutory construction in determining the rights of a known sperm donor. Notwithstanding the court's conclusion in McIntyre v. Crouch, supra, 98 Or.App. 472, that the statute was unconstitutional as applied to the sperm donor's due process rights, it held that the statute is clear and unambiguous applying to all sperm donors whether known or unknown to achieve the purposes of the artificial insemination procedures and to make these procedures available to all women without the donor incurring support costs. The concurring opinion disagreed as to the ambiguity of the statute and opined that the word "donor" is not defined and as a part of the procedures for artificial insemination does not apply to the situation where a known donor wants to take on the rights and obligations of parenthood and there is an agreement to evidence a reservation of rights. Id., 473-74 (Deits, J., concurring). In other words, Judge Deits stated that in the present case the term "donor" did not mean making an unconditional no-strings attached donation because he reserved the right to visit his child and participate in his support, maintenance and upbringing. Id. Although the dissenting opinion agreed with the majority that the statute is clear to preclude males whose sperm is used for artificial insemination from obtaining parental rights, it disagreed that its application to the sperm donor was a violation of his due process rights. Id., 475 (Richardson, J., dissenting). The dissent concluded that if the legislatures had thought of a situation where a donor, who is not the mother's husband but who has a consensual arrangement with her, it might have considered an exception to the operation of that statute. Id.
The Oregon statute, ORS 109.239 § 5(1977) provides: "If the donor of semen used in artificial insemination is not the mother's husband: (1) Such donor shall have no right, obligation or interest with respect to a child born as a result of artificial insemination; and (2) A child born as a result of the artificial insemination shall have no right, obligation or interest with respect to the donor."
The Colorado case, In re R.C., supra, 775 P.2d 27 held that the statute is ambiguous with respect to the rights and duties of known donors and unmarried recipients. Id., 34. Since the legislatures did not contemplate what the resulting rights and obligations would be of a known donor who provides his sperm to a licensed physician for use in artificially inseminating an unmarried woman, the court declared that the intent of the known donor and unmarried recipient is relevant to a determination of parental rights. Id., 33-34. The majority therein relied on the statute's ambiguity or silence as to defining a "known" sperm donor and that the statute was not applicable to one who had mutually agreed to retain his status as the father of the child and had at the time of insemination expressly agreed to be treated as the natural father. Id., 35. The court focused on the existence of an agreement at insemination, the best interests of the child, an acknowledgment of paternity and the inclusion of the name of the sperm donor on the child's birth certificate as relevant evidence of the intent of the parties to conclude that the statue was not intended to affect the parental rights of known donors who provided their sperm to an unmarried woman with the mutual intent that the donor would retain the legal status of father of any child so conceived. Id., 34-35.
C.R.S. § 19-4-106(2) (1988 Sup.) provides: "The donor of semen provided to a licensed physician 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."
None of the above cited cases are dispositive of the issue presently before the court. The reasoning, however, in each case is helpful in resolving this difficult question. In the present case, the language of Connecticut's sperm donor statute, § 45a-775, cannot be considered to be clear and unambiguous since the act of which it is a part on artificial insemination neither includes the words "known" or "identified" sperm donor nor are there any statutory definitions of these words. In addition, when the statute was enacted in 1970, it becomes clear that it was not envisioned by our legislatures that the statute would apply to this unique fact situation. Rather, when read together with other sections of the act, in particular § 45a-774, it can be gleaned that the intent of these statutes is to protect children born, as a result of this procedure to be performed only by the consent and request of the husband and wife, from bastardy and, therefore, these children were to be considered the legitimate children of the husband. See footnote 8.
Even if this court concluded that § 45a-775 is clear and unambiguous, if there is an agreement between the parties about the donor's parental rights and that he would have them, it would be a violation of his due process right to apply the statute to him. The plaintiff has submitted an affidavit in which he attests that he and the defendant had an oral agreement prior to the insemination procedure, and that his willingness to be a sperm donor was based on an understanding that any child born of the procedure, would have an ongoing relationship with him, including visitation rights, and that he would be known as the child's father. Further evidence of the intent and expectations of the plaintiff is the fact that his name as the father of the child is on the birth certificate and, on May 25, 2005 four days after the child's birth, he and the defendant executed an acknowledgment of paternity pursuant to § 46b-172. His acknowledgment of paternity shows that he is willing to accept the responsibility for the support, education and care of the child and he should be afforded with at least as much protection of his parental rights as that of any putative father who has acknowledged paternity. Section 46b-172(a) "provides that when such an acknowledgment has been properly executed, and sixty days have passed without either parent seeking its rescission as provided by § 46b-172(a)(2), the document thereafter has the same force and effect as a judgment of the superior court on the paternity issue." Worthy v. Wyatt, Superior Court, judicial district of New London at Norwich, Docket No. FA 04 0129531 (December 6, 2005, Boland, J.) (40 Conn. L. Rptr. 379). In Bleidner v. Searles, 19 Conn.App. 76, 81, 561 A.2d 76 (1989), the court discussed the predecessor statute of § 46b-172 and the legislated preference for the finality of judgments of paternity. "[T]he acknowledgment procedure provides an alternative to a full scale judicial proceeding, and an agreement reached pursuant to it does not require court approval . . . Once a person signs a written acknowledgment form, that form has the same force and effect as a judgment in the court . . . As to the issue of paternity, the judgment is res judicata, and is reviewable by the court only through a petition for a hearing on that issue filed within [60 days] of entry of the judgment." (Internal quotation marks omitted.) Id. In Connecticut this Acknowledgment of Paternity is the "Gold Standard" in cases brought before the Magistrate's Court by Support Enforcement. It is a judgment that the respondent is the "father" of the child and as a result is saddled with certain responsibilities. The other side of that coin is that he is also possessed of certain rights. Although the defendant has asserted that she did not intend for the plaintiff to obtain any rights with regard to the child by her acknowledgment under oath that belief does not affect the legal import of her having signed it. Undoing such an acknowledgment, after the sixty-day period has passed may only be done at the discretion of the Court and based upon a DNA test that the respondent is not possibly the biological father of the child. That is not the case here.
Based on the circumstances surrounding the decision by the defendant to be artificially inseminated by the sperm of the plaintiff, the preconception intent of the parties, the evidence submitted, and, in particular, the plaintiff's acknowledgment of paternity, it is the court's determination that he has standing to bring an application for joint legal custody and visitation of the child. The defendant's motion to dismiss is denied.