L.F.,
Supreme Court of Virginia
January 10, 2013
JUSTICE WILLIAM C. MIMS
PRESENT: Kinser, C.J., Lemons, Goodwyn, Millette, Mims, and Powell, JJ., and Russell, S.J. FROM THE COURT OF APPEALS OF VIRGINIA
OPINION BY JUSTICE WILLIAM C. MIMS
In these appeals, we consider whether
I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW
Beverley Mason and William D. Breit had a long-term relationship and lived together as an unmarried couple for several years. They wished to have a child together. Unable to conceive naturally, they sought reproductive assistance from Dr. Jill Flood, a board-certified fertility doctor.
Dr. Flood performed two cycles of in vitro fertilization (“assisted conception“). Each time, she retrieved eggs from Mason, fertilized them outside her body using Breit‘s sperm, and transferred the resulting embryos into Mason‘s body. Breit was present for all stages of the in vitro fertilization process and continued to live with Mason throughout the resulting pregnancy.
Prior to the child‘s birth, Mason and Breit entered into a written custody and visitation agreement providing Breit with reasonable visitation rights and agreeing that such visitation was in the child‘s best interests.
On July 13, 2009, Mason gave birth to L.F. Breit was present for L.F.‘s birth and is listed as the father on her birth certificate. The couple named her after Mason‘s paternal grandmother and Breit‘s maternal grandmother, and her last name is a hyphenated combination of their surnames.
On the day after L.F.‘s birth, Mason and Breit jointly executed a written agreement, identified as an “Acknowledgement of Paternity,” stating that Breit is L.F.‘s legal and biological father.1 The couple jointly mailed birth announcements naming Mason and Breit as L.F.‘s parents. They stated to friends and family that Breit was L.F.‘s father, and continued to live together for four months following L.F.‘s birth.
After the couple separated, Breit continued to provide for L.F. financially. He maintained her as his child on his health insurance policy and continued to provide child support. He consistently visited L.F. on weekends and holidays, thereby beginning to establish an ongoing parent-child relationship with her. Breit took an active role in L.F.‘s life until August 2010, when Mason unilaterally terminated all contact between Breit and L.F.
On August 24, 2010, Breit filed a petition for custody and visitation in the Juvenile and Domestic Relations District Court of the City of Virginia Beach. Mason filed a motion to dismiss and the court dismissed Breit‘s petition without prejudice. In November 2010, pursuant to
At the hearing on the motions, the circuit court appointed Jerrold Weinberg, an attorney who previously had been retained by Mason to represent L.F., to serve as L.F.‘s guardian ad litem (“GAL“). The circuit court sustained the pleas in bar, denied Breit‘s motion for summary judgment, and dismissed by nonsuit the remainder of Breit‘s petition seeking custody and visitation. Breit appealed the circuit court‘s judgment to the Court of Appeals.
The Court of Appeals reversed the circuit court‘s decision to sustain the pleas in bar. Breit v. Mason, 59 Va. App. 322, 337-38, 718 S.E.2d 482, 489 (2011). It held that
a known sperm donor who, at the request of a woman to whom he is not married, donates his sperm for the purpose of uniting that sperm with that woman‘s egg to accomplish pregnancy through assisted conception and who, together with the biological mother, executes an uncontested Acknowledgement of Paternity under oath, pursuant to
Code § 20-49.1(B)(2) , is not barred from filing a parentage action pursuant toCode § 20-49.2 to establish paternity of the child resulting from assisted conception.
Id. at 337, 718 S.E.2d at 489.
In reaching its decision, the Court of Appeals “harmonized”
- The Court of Appeals erred in rejecting the circuit court‘s decision that a sperm donor who is unmarried to the mother of a child conceived by “assisted conception” is not the child‘s father under
Va. Code §§ 20-158(A)(3) and32.1-257(D) , and in overturning the circuit court‘s ruling sustaining the pleas in bar.
. . . .
- The Court of Appeals erred in failing to rule that donor‘s acknowledgement of paternity was void ab initio and ineffective and that donor lacked any proper basis for asserting parentage.3
We also granted Breit‘s assignments of cross-error:
- The Court of Appeals erred in failing to reverse the trial court for failing to enter summary judgment in favor of the father pursuant to
§ 20-49.1(B)(2) when the birth mother voluntarily signed an “acknowledgement of paternity” under oath acknowledging the biological father to be the legal father of the child.
2. The Court of Appeals erred in failing to rule that
Before we analyze the issues in this case, it is helpful to review the legislative history and policy behind the two primary statutes.
A. TITLE 20, CHAPTER 3.1 (CODE § 20-49.1 et seq.)
At common law, there was no recognized duty on the part of an unmarried father to support his biological child. See Brown v. Brown, 183 Va. 353, 355, 32 S.E.2d 79, 80 (1944). The first statutory modification of the common-law rule occurred in 1952, when the General Assembly allowed proof of paternity to establish such a duty, but only by the father‘s admission of paternity under oath before a court. 1952 Acts ch. 584 (formerly codified as
Chapter 3.1 is entitled “Proceedings to Determine Parentage.” The provision most pertinent to this case,
B. TITLE 20, CHAPTER 9 (CODE § 20-156 et seq.)
The assisted conception statute was enacted in response to Welborn v. Doe, 10 Va. App. 631, 394 S.E.2d 732 (1990), a case involving a married couple and a third-party sperm donor. In Welborn, the Court of Appeals held that the only sure way for the husband of a gestational mother to secure parental rights, thereby divesting any rights of a third-party donor, was for the husband to adopt the child. Id. at 633, 394 S.E.2d at 733. The court noted the General Assembly‘s failure to enact legislation terminating the rights of such sperm donors, stating: “[u]ntil such time as the Code is amended to terminate possible parental rights of a sperm donor, only through adoption may the rights of the sperm donor be divested and only through adoption may the rights of Mr. Welborn and the twins born to his wife be as secure as their rights would be in a natural father-child relationship.” Id. at 635, 394 S.E.2d at 734.
In 1991, at the next legislative session following Welborn, the General Assembly enacted the assisted conception statute, stating: “[t]he husband of the gestational mother of a child is the child‘s father” and “[a] donor is not the parent of a child conceived through assisted conception.” 1991 Acts ch. 600 (enacting
III. ANALYSIS
A. STANDARD OF REVIEW
This appeal presents purely legal questions of statutory and constitutional interpretation which we review de novo. Copeland v. Todd, 282 Va. 183, 193, 715 S.E.2d 11, 16 (2011); Addison v. Jurgelsky, 281 Va. 205, 208, 704 S.E.2d 402, 404 (2011).
B. ASSISTED CONCEPTION STATUTE
Mason argues that the Court of Appeals erroneously harmonized the clear language of the assisted conception statute with
We disagree with Mason‘s interpretation of this statute, because her argument ignores a significant provision of the assisted conception statute.
A child whose status as a child is declared or negated by this chapter [chapter 9] is the child only of his parent or parents as determined under this chapter, Title 64.1, and, when applicable, Chapter 3.1 (
§ 20-49.1 et seq. ) of this title for all purposes . . . .
(Emphasis added.) This explicit cross reference to Chapter 3.1 (
Mason‘s argument is grounded in two provisions of the assisted conception statute,
Mason argues that
The parent and child relationship between a child and a man may be established by:
- Scientifically reliable genetic tests, including blood tests, which affirm at least a ninety-eight percent probability of paternity. Such genetic test results shall have the same legal effect as a judgment entered pursuant to
§ 20-49.8 .- A voluntary written statement of the father and mother made under oath acknowledging paternity . . . . The acknowledgement may be rescinded by either party within sixty days from the date on which it was signed . . . . A written statement shall have the same legal effect as a judgment entered pursuant to
§ 20-49.8 and shall be binding and conclusive unless, in a subsequent judicial proceeding, the
person challenging the statement establishes that the statement resulted from fraud, duress or a material mistake of fact.4
Mason next argues that allowing unmarried sperm donors such as Breit to establish parentage pursuant to
Preliminarily,
Mason argues that, under
We agree with the Court of Appeals that the General Assembly did not intend to divest individuals of the ability to establish parentage solely due to marital status, where, as
here, the biological mother and sperm donor were known to each other, lived together as a couple, jointly assumed rights and responsibilities, and voluntarily executed a statutorily prescribed acknowledgement of paternity.
Having determined that
The provisions of this chapter [chapter 9] shall control, without exception, in any action brought in the courts of this Commonwealth to enforce or adjudicate any rights or responsibilities arising under this chapter.
This provision requires this Court to give precedence to
C. EQUAL PROTECTION AND DUE PROCESS
Breit argues that if we accept Mason‘s argument the assisted conception statute violates the Equal Protection Clause of the Fourteenth Amendment. He suggests that the statute treats unmarried male donors differently than unmarried female donors and treats unmarried donors differently than married donors.
The assisted conception statute does not distinguish between donors based on gender. The statute defines “[d]onor” as “an individual, other than a surrogate, who contributes the sperm or egg used in assisted conception.”
We have consistently recognized that the Commonwealth has a significant interest in encouraging the institution of marriage. E.g., Cramer v. Commonwealth, 214 Va. 561, 564, 202 S.E.2d 911, 914 (1974).
Next, Breit contends that the assisted conception statute, if applied as advanced by Mason without harmonization with
The relationship between a parent and child is a constitutionally protected liberty interest under the Due Process Clause of the Fourteenth Amendment.7 Troxel v. Granville, 530 U.S. 57, 65 (2000); Wyatt v. McDermott, 283 Va. 685, 692, 725 S.E.2d 555, 558 (2012) (“We recognize the essential value of protecting a parent‘s right to form a relationship with his or her child.“); Copeland, 282 Va. at 198, 715 S.E.2d at 19. Indeed, the Supreme Court of the United States has characterized a parent‘s right to raise his or her child as “perhaps the oldest of the fundamental liberty
interests recognized by this Court.” Troxel, 530 U.S. at 65. Any statute that seeks to interfere with a parent‘s fundamental rights survives constitutional scrutiny only if it is narrowly tailored to serve a compelling state interest. McCabe v. Commonwealth, 274 Va. 558, 563, 650 S.E.2d 508, 510 (2007); see also Washington v. Glucksberg, 521 U.S. 702, 721 (1997).
Significantly, in Lehr v. Robertson, 463 U.S. 248 (1983), the Supreme Court of the United States examined the extent to which an unmarried father‘s relationship with his child is protected under the Due Process Clause. The Court recognized that parental rights do not arise solely from the biological connection between a parent and child. Id. at 261. The Court described the constitutionally protected right of unwed parents as follows:
When an unwed father demonstrates a full commitment to the responsibilities of parenthood by coming forward to participate in the rearing of his child, his interest in personal contact with his child acquires substantial protection under the Due Process Clause.
Id. (internal quotation marks and citation omitted).
Prior to his visitation being terminated, Breit demonstrated a full commitment to the responsibilities of parenthood. He was actively participating in L.F.‘s life, had agreed to be listed as the father on her birth
If applied without harmonization with
the parent of a child conceived through assisted conception. That interpretation would absolutely foreclose any legal means for Breit to establish parentage of L.F., solely by virtue of his status as an unmarried donor. It would prevent Breit from continuing the constitutionally protected relationship he had begun to establish with his infant child. Such a result cannot withstand constitutional scrutiny.
A governmental policy that encourages children to be born into families with married parents is legitimate. In fact, it is laudable and to be encouraged. Yet neither our jurisprudence nor that of the United States Supreme Court permits that policy to overcome the constitutionally protected due process interest of a responsible, involved, unmarried mother or father. See Martin v. Ziherl, 269 Va. 35, 42, 607 S.E.2d 367, 370 (2005). Simply put, there is no compelling reason why a responsible, involved, unmarried, biological parent should never be allowed to establish legal parentage of her or his child born as a result of assisted conception.
When we apply the necessary constitutional due process analysis, the Court of Appeals’ harmonization of
D. ENFORCEABILITY OF ACKNOWLEDGEMENTS OF PATERNITY
In a final, related argument, Mason contends that acknowledgements of paternity
Mason relies on this Court‘s holding in Kelley v. Kelley, 248 Va. 295, 449 S.E.2d 55 (1994). In Kelley, we refused to honor an agreement relieving a divorced father of his child support obligations, holding that “parents cannot contract away their children‘s rights to support” and that “any contract purporting to do so is facially illegal and void.” Id. at 298-99, 449 S.E.2d at 56-57. Mason miscomprehends the breadth of our holding. Kelley only addresses agreements contracting away a child‘s right to receive support and maintenance. Breit‘s acknowledgement of paternity provides for the exact opposite - it provides L.F. with a legal avenue to receive support from both parents. Kelley does not prohibit such an agreement.
Furthermore, we reject the notion that children have a purported right or interest in not having a father. To the contrary, Virginia case law makes clear that it is in a child‘s best interests to have the support and involvement of both a mother and a father, even if they are unmarried. See Copeland, 282 Va. at 194-95, 715 S.E.2d at 17; Wilkerson v. Wilkerson, 214 Va. 395, 397-98, 200 S.E.2d 581, 583 (1973) (recognizing that one parent cannot arbitrarily deprive a child of a relationship with the other parent); see also June Carbone, Which Ties Bind? Redefining the Parent-Child Relationship in an Age of Genetic Certainty, 11 Wm. & Mary Bill Rts. J. 1011, 1023-24 (2003) (discussing children‘s interests in the continuing involvement of both parents in the child‘s life).
Although our analysis in this case rests on Breit‘s constitutionally protected rights as a parent, we recognize that children also have a liberty interest in establishing relationships with their parents. Commonwealth ex rel. Gray v. Johnson, 7 Va. App. 614, 622, 376 S.E.2d 787, 791 (1989). Consequently, it is incumbent on courts to see that the best interests of a child prevail, particularly when one parent intends to deprive the child of a relationship with the other parent. “The preservation of the family, and in particular the parent-child relationship, is an important goal for not only the parents but also government itself . . . . Statutes terminating the legal relationship between [a] parent and child should be interpreted consistently with the governmental objective of preserving, when possible, the parent-child relationship.” Weaver v. Roanoke Dep‘t of Human Res., 220 Va. 921, 926, 265 S.E.2d 692, 695 (1980). Here, L.F. faces a potential loss of liberty in the form of deprivation of a relationship with her biological father, solely because she was conceived through assisted conception by unmarried parents. Virginia‘s marital preference in assisted conception protects an intact family from intervention from third-party strangers, but it was not intended to deprive a child of a responsible, involved parent.
E. CODE § 32.1-257(D)
Finally, Mason argues that
[T]he name of the father shall not be entered on the certificate of birth without a sworn acknowledgement of paternity, executed subsequent to the birth of the child, of both the mother and of the person to be named as the father.
. . . .For the purpose of birth registration in the case of a child resulting from assisted conception, pursuant to Chapter 9 (
§ 20-156 et seq. ) of Title 20, the birth certificate of such child shall contain full information concerning the mother‘s husband as the father of the child and the gestational mother as the mother of the child. Donors of sperm or ova shall not have any parental rights or duties for any such child.
Our interpretation of this statute is controlled by our analysis of the assisted conception
IV. CONCLUSION
For the reasons set forth above, we will affirm the judgment of the Court of Appeals.
Record No. 120158 – Affirmed.
Record No. 120159 – Affirmed.