*1 Superior ielson v. 157 Ariz. (App.1987). P.2d Additionally, recognizes
Arizona exception crime-fraud attorney-client privilege. Pearce v. Stone, 567, 572-73,
547-48 (App.1986). suggests Petitioner also that the trial judge should not have production ordered the
of the records without first reviewing them in matter, practical camera. As a many cases it will appropriate judge for the trial requested review the records in camera to they determine whether are relevant to the case, issues at trial. In this where all that seeking State is relating are the records assault, specific inspection an in-camera was not essential.
CONCLUSION accept deny relief. Benton’s medical records protect- are neither
ed Bill Rights Victims’ nor the physician-patient privilege. The order of the requiring production
trial court of the rec- ords is affirmed. request Benton’s for attor- ney’s fees is denied.
WEISBERG, P.J., JACOBSON, J., concur. P.2d SOOS, Petitioner,
Ronald A. SUPERIOR COURT of the State of Ari
zona, In and For the COUNTY OF
MARICOPA, the Honorable Pamela J.
Franks, judge thereof, Respondent
Judge, Ballas,
Pamela J. SOOS and Debra Real Parties Interest. 1No. CA-SA 94-0068. Arizona, Appeals Court of 1, Department Division D. Dec. 1994. July Review Denied
Jones, by Hochuli Eileen J. Skelton & Zarzynski Offices of John Dennis and Law Phoenix, Zarzynski, petition- by R. for John er. Robinson, Syme by & Robert G.
Robinson Glendale, party in interest Soos. for real McKindles, P.C., Harry E. & Cawood Cawood, Mesa, party real interest Bal- for ias.
OPINION
CLABORNE, Presiding Judge. Special Action from This is a Petition for surro- declaring order trial court’s gate parentage contracts statute unconstitu- evidentiary hearing an tional and person would be the better determine which triplets. Ronald Petitioner “mother” Father”) (“the A. contends that trial Soos as matter law in court erred and that she exceed- statute unconstitutional authority. jurisdiction We ed her disagree and find that the violates States Protection Clause of United previously and Arizona Constitutions. accepted and denied relief with Opinion. This is that Opinion follow. AND PROCEDURAL HISTORY FACTS wife, his Pamela J. Father and then (“the Mother”), into a Soos entered (“the Debra Balias parentage contract with unable Surrogate”)1 because the was partial hyster- children because of have gestates the babies surrogacy arrangement which This case involves ectomy. Eggs were the Moth- removed from have no desire to do more than she (in tube) do, carry give er hired to and fertilized vitro was which is test current sperm birth child. The law also Pursuant obtained Father. generations ignores important role Program” to a “Host Uterus at the Arizona *3 genetics play of in the determination Medicine, Reproductive Institute of the ferti- of a child is The cur- who and becomes. eggs implanted Surrogate. lized were the rent law does not consider what is the Surrogate pregnant trip- The became with interest of child. best each individual lets. § THE COURT FINDS A.R.S. 25- pregnancy During Surrogate, the of the 218(B) to be unconstitutional. petition the Mother filed a for dissolution of evidentiary hearing An set to was determine marriage requesting custody of shared the which mother could the better assume social triplets. unborn responded The Father legal responsibilities of and motherhood. petition, alleging biologi- the that he was the The trial court also that the ordered cal father the triplets, of unborn and that rights triplets, have the visitation with and (1991), pursuant to A.R.S. section 25-218 the triplets tempo- would the remain Surrogate legal the trip- was mother the of rary custody Following of the Father. the alleged lets. The Father further that since reconsideration, of denial a motion for the Surrogate legal the was the of the mother Special filed this Father Petition for Action. triplets, standing the Mother had no to re- quest custody. SPECIAL ACTION JURISDICTION September Surrogate gave of the question, threshold we As a address our triplets. birth to The Father and the Surro- reasons, special jurisdiction. action For two gate request paternity filed a for First, order of special jurisdiction. we have action Maricopa with County Superior the Court. equally plain, speedy, the Father has no remedy by An naming adequate appeal. order entered Father See Ariz.Rev. was the as 22-375(B) (“A.R.S.”) (1990); StatAnn. triplets, the of the and natural father Special for Arizona Rules Procedure Ac- custody Father triplets. took 1(a) (1988); McDougall tions State rel. v. ex responded by filing The Mother a motion Riddel, 169 Ariz. appointment triplets, for of counsel for Second, accepted jurisdiction (App.1991). we visitation, temporary emergency motion for constitutionality surrogate of the because and a motion to consolidate the dissolution impression is an issue of first and a proceeding paternity with the In her action. importance. matter statewide See Du- motions, the Mother attacked the constitu- Court, quette Superior 25-218(B) tionality of A.R.S. section declar- Large (App.1989); Supe- ing Surrogate legal to be the P.2d rior The trial in its entry court minute said: (special appropriate action over significance). matters constitutional
THE COURT FINDS that there is not a justifies compelling state interest that ter- DISCUSSION
minating the substantive due rights of the mother in such a The Father raises three issues. summary fashion. as a 1. Did the trial court err matter of 25-218(B)
The current law could leave a child with- law in A.R.S. section mother, gestational out as a mother unconstitutional? ("gestational surrogate”) involving technology, simpler share the In cases sur- genes. agrees babies' Ova were the con- inseminated extracted from to be tracting sperm contracting mother and fertilized in father in which case vitro contracting resulting surrogate sperm genetically of the father. The related to the child case,
zygotes purposes inserted in For we refer to the were then the uterus born. of this mother, surrogate Surrogate. gestated simply as the who the fetuses. prohibiting surro- jurisdic- governmental 2. interests in Did the trial court exceed her arbitrary designed legal authority, The gate tion and make an contracts. statute was decision, stop dis- the traffick- capricious “baby and abuse her brokers” and to stop and evidentiary hearing beings. human ing cretion who be the better determine would question us is whether before mother? enacting State’s reasons If A.R.S. section 25-218 is constitution- sufficient to parentage contracts statute are al, jurisdic- the trial court exceed her did scrutiny under the withstand authority, arbitrary make an protection, privacy process, decision, capricious dis- and abuse her guaranteed States and rights the United *4 rights to the cretion visitation keep in must Arizona Constitutions. We Mother? dealing custody a with mind that we biological mother and bio- issue between the responded peti- The to Mother the Father’s logical father and constitutional issues the 25-218(B) alleging tion that A.R.S. section surrounding interests. competing their This process, equal protection, her due violated surrogate a case of the mother versus is not privacy rights guaranteed by the United biological dealing are not the We States and Arizona Constitutions. The Sur- questions that with the constitutional arise response petition, filed a also to the surrogate keep to when the mother wishes petition. agree joining the Father his Thus, limit the child she bore. we ourselves tidal court and that the the Mother of statute with- question whether the 25-218(B) AR.S. section is unconstitutional scrutiny when it affords stands equal protec- it the because violates Mother’s prove biological opportunity a father an to rights. gain custody, does paternity and not provides section 25-218 in relevant A.R.S. biological opportu- same afford a mother the part: nity. into, induce, person may A. No enter arrange, procure assist otherwise EQUAL PROTECTION surrogate parentage
formation of a con- tract. equal protection firstWe address the argument. argues The that AR.S. surrogate legal B. A is the of a unconstitutionally her section 25-218 denies par- child born as a result of a equal protection right of the laws. entage custody and is entitled to of the Four The Protection Clause of child. of Con teenth Amendment the United States If mother of C. a child born as legis power “to stitution denies states married, result of a contract is be accorded to late that different treatment presumed her is husband to be the persons placed into different statute presumption father of the child. This is wholly on the basis of criteria unre classes rebuttable. objective lated to the of that statute.” Reed Reed, 71, 251, 254, 404 U.S. 92 S.Ct. added.) (Emphasis This statute was fash- (1971). 30 L.Ed.2d Michigan ioned and enacted after surrogate par- of purpose prohibiting statute, reviewing we must entage contracts. See from House minutes applies. of determine which three standards Judiciary, Legis., on 1st Committee 39th scrutiny (H.B. 4,1989). is The first standard a strict test. April The minutes Sess. suspect applied Re- It is to statutes that involve of the House Committee on Human 16, right. impinge on meeting February class or Aging of sources & 1989, Equip. Bryant Conveyor & the minutes the House Commit- Continental Co., Inc., 193, 196, Judiciary April 751 P.2d tee on reflect omitted) (the only “may upheld if ; Drug Sundry & Church v. Rawson interest’ to be Co., ‘compelling state 1362 there is a ‘necessary’ to review, regulation is and the served (App.1992). The second standard objective.”). legislative scrutiny, been limited to achieve the means-end has illegiti- involving gender and classifications P.2d at
macy 25-218(C) of birth. Church at a man allows A.R.S. standard, The final the rational basis legal paternity presumption of rebut the test, legislation is used when the does provide by proving “fatherhood” but funda- suspect classification or a involve A for a wom opportunity woman.2 the same at 1363. right. mental Id. at child genetically related to a may be an who maternity her opportunity
has no opportunity to thereby denied the dealing a statute that We are relationship. develop parent-child She rights. one of the civil The affects basic procedural process which afforded no of the state and federal con clauses stitutions, maternity under the statute. rights emanating prove her together with the de parental interests not less Rights, Mother has guarantees of the Bill of of the Fa serving protection than those protect “individual decisions matters *5 treatment for by “By providing dissimilar unjustified intrusion ther. childbearing from similarly are thus situ men and women who Carey Population Ser. 431 v. State.” Int'l 2017, ated,” Protec 678, 687, 2010, the statute violates 52 L.Ed.2d 97 S.Ct. U.S. 77, Reed, at 92 at (1977); 404 U.S. S.Ct. Maricopa County Su tion Clause. v. 675 Stewart 227, 126 254. 787 P.2d perior Gen., ; Mich.App. Attorney 194 Doe v. (1992).
432,
484,
“Marriage
487 N.W.2d
486
responds
problem
to this
The Father
very
procreation
and
are fundamental
biology alone is not
by arguing that mere
race.” Skinner
existence and survival of the
guaran
parental rights
enough to create the
Oklahoma,
535, 541, 62 S.Ct.
316 U.S.
argu
this
by
We find
teed
our constitutions.
(1942).
1110, 1113,
parent’s
A
Robertson,
L.Ed. 1655
86
463
inapplicable. Lehr
ment
custody and control of one’s child
right to the
248,
2985,
L.Ed.2d 614
103
77
U.S.
S.Ct.
by the
guaranteed
a fundamental interest
is
(1983),
biologi
existence of a
holds that mere
Arizona Constitutions.
States and
United
enough
give
link
to
rise to constitu
cal
is not
Illinois,
645, 651,
405
92 S.Ct.
Stanley v.
U.S.
parent can claim
protections. Before a
tional
(1972);
1212-13,
1208,
Co
The usual trafficking in ba- mercenary preventing the biological relationships, most decisions buy- bies, i.e., and the rent-a-womb services treating parent the relation between legiti- selling eggs. also has a ing and It element____ The child have stressed this disrup- to avoid the emotional mate concern ‘biological connection’ relation- is itself a likely to result in the ship protected that creates interest. Mary (e.g., taking the child from her from Thus the ‘nature’ the interest is the Whitehead), deni- as the child’s parent-child relationship; well devel- Beth well as how relationship goes oped object that has profit. become These consti- gration as an ‘weight,’not its its ‘nature.’ Lehr U.S. why reg- compelling principle reasons in tute 272,103 (White, at at S.Ct. J. dissent- may prohibition in this area ulation (citation omitted). ing) Ethical appropriate. Wagner, See W. “The Maternity,” Implications Legal of Hired By affording procedure the Father a Jurisprudence 187 35 American Journal of paternity, affording proving but not (1990). means mater which to protec nity, the State has denied her present agree majority I “A tion of the laws. classification must be these adequately achieve reasonable, arbitrary, upon and must rest agree me the differ. I goals, but for reasons ground having fair and some of difference holding the the trial court’s reason for object legis substantial relation unconstitutional, namely it im- lation, persons similarly all so that circum surro- *6 poses the burden motherhood on a stanced shall be treated alike.” Reed 404 gate certainly mother who almost at U.S. at S.Ct. 254. The it and did not for it. Her wish statute violates this principle. We hold carry child, not to nurture contract is any in compelling the State has shown bur- or raise it. The statute thrusts these justify the terest dissimilar treatment of duty beyond as a her con- dens on her well (the similarly men and women situated bio tract. father). logical The statute is equal protection grounds. on unconstitutional reason, corollary By way of to that disregards the of the
statute best interests ways. CONCLUSION In the first child. It does so two automatically giving custody of the place, find that the affects surrogate, ignores the child to the the statute liberty interest. The surro- mentioned, just very possibility, real gate statute as it exists violates probably mother has no interest protection guarantees of the United States raising child, hardly a deci- whatsoever and Arizona Constitutions. Equally child’s interest. sion best resolution, our Because of we decline ignores the statute the universal importantly, remaining by the address the issues raised domestic to make pattern our relations law and the Mother. Father child’s custodian an the determination evidentiary turning matter on the child’s best accepted; -is denied. Jurisdiction is relief interests, priori rather than matter of a a statutory comparison, See for AR.S. fiat. McGREGOR, J., concurs. E, including subsection which any preference custodial based on prohibits GERBER, Judge, concurring. specially gender. view, my the statute is unconstitutional Furthermore, part first in addition to for a number reasons surroga- prohibits it all because one above. overbroad described mercenary cy it is or not. I cannot whether properly-
see barrier surroga- permit drafted statute which would cy for limited altruistic motives other than i.e.,
profit, family member or friend where unpaid gestational agrees to serve as an sur- for the Although I the concern share about regarding violation the mother’s maternity, inability that issue seems present great practical problem no be- identity always maternal seems to be a cause me, given fact. To the reasons above compelling more AR.S. section 25-218 unconstitutional. MALDONADO, Appellant,
Esther *7 DEPARTMENT OF ARIZONA SECURITY, ECONOMIC Agency, Stores, Broadway Appellees. Southwest 92-0125. No. CA-UB Arizona, Appeals of Court of 1, Department Division C. 8, 1994. Dec. July Review Denied