LC v. MG , 430 P.3d 400 ( 2018 )

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Electronically Filed
Supreme Court
SCAP-XX-XXXXXXX
04-OCT-2018
08:30 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
LC,
Petitioner-Appellant,
vs.
MG and CHILD SUPPORT ENFORCEMENT AGENCY, STATE OF HAWAI#I,
Respondents-Appellees.
SCAP-XX-XXXXXXX
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(CAAP-XX-XXXXXXX; FC-P NO. 16-1-6009)
OCTOBER 4, 2018
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.1
OPINION OF THE COURT EXCEPT AS TO PART III(B) AND
OPINION AS TO PART III(B) BY NAKAYAMA, J., IN WHICH
RECKTENWALD, C.J., JOINS
The Uniform Parentage Act (UPA) was adopted by the
Hawai#i State Legislature in 1975 to “provide substantive legal
1
Justice Nakayama, with whom Chief Justice Recktenwald joins, writes the
opinion of the court except as to Part III(B). Justice McKenna, with whom
Justice Pollack and Justice Wilson join, joins the opinion of the court except
as to Part III(B), and writes the opinion of the court with respect to the
issue addressed in Part III(B) of Justice Nakayama’s opinion.
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equality for all children regardless of the marital status of
their parents.” H. Stand. Comm. Rep. No. 190, in 1975 House
Journal, at 1019. To that end, the UPA presumes legal paternity
in certain circumstances. One such presumption of paternity is
the marital presumption, which presumes that a man is the natural
father of a child when he and the child’s mother are married to
each other and the child is born during the marriage. The issue
in this case is whether this presumption similarly applies in
determining whether a woman married to the child’s natural mother
is the parent of that child.
Petitioner-Appellant LC sought a divorce from her wife
Respondent-Appellee MG in the Family Court of the First Circuit
(family court) shortly after a child was born to MG through an
artificial insemination procedure. While LC and MG were legally
married at the time of the child’s birth, LC is not biologically
related to the child. After the child was born, LC subsequently
sought an order in the family court to disestablish paternity.
The family court denied LC’s request, determining that under the
UPA and Hawaii’s Marriage Equality Act (MEA), LC was the child’s
legal parent. LC appealed, and the case was transferred to this
court from the Intermediate Court of Appeals.
For the reasons discussed below, we first hold that
both the UPA and the MEA demonstrate that the UPA’s marital
2
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presumption of paternity applies equally to both men and women.
Therefore, because LC and MG were legally married at the time
that the child was born, LC is presumed to be the legal mother of
the child. Second, we hold that LC did not rebut the presumption
of parentage.
Accordingly, we conclude that LC is the legal parent of
the child, and affirm the family court’s November 1, 2016
Decision and Order denying her request to disestablish paternity.
I. BACKGROUND
LC and MG first met in 2010, and began a relationship
in 2011. At that time, LC was a student at the Naval Academy in
Annapolis, Maryland and MG lived in Silver Spring, Maryland.
Also during that time, LC and MG began to discuss the possibility
of having a child together. On October, 13, 2013, LC and MG were
legally married in Washington, D.C. The day after, both parties
visited Shady Grove Fertility Reproductive Science Center (Shady
Grove) in Rockville, Maryland. There, they both signed Shady
Grove’s “Ovulation Induction, Monitoring and/or Insemination
Treatment” form and a “Consent to Accept Donated Sperm from
Anonymous Donor.” The consent form read in part,
I/We, [MG] (“Sperm Recipient”) and [LC] (“Recipient
Partner”, if applicable) each hereby jointly and
individually elect to utilize donor sperm of an anonymous
donor recruited by a Sperm Bank (“Donor”) which may be used
as part of my/our assisted reproductive technology
treatments. . . .
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. . . .
I have read the “Information Packet for Use of Donor
Sperm” as well as this Consent document in its entirety and
have had ample time to reach my/our decision free from
pressure and coercion, and agree to proceed with my/our
participation in the use of donor sperm as stated above.
The parties decided that MG should carry their first child,
because she was older and LC was currently serving in the
military.
The parties relocated to O#ahu, Hawai#i pursuant to LC’s
military orders and assignment in October 2014. At that time, MG
was not employed, and LC financially supported the couple.
In December 2014, LC and MG jointly attended an
appointment at the Fertility Institute of Hawai#i (FIH), met with
a physician’s assistant, and toured the facility.
In January 2015, LC deployed overseas and MG remained
on O#ahu. While LC was deployed, she continued to communicate
with MG regarding MG’s plans to become pregnant. On February 23,
2015, MG sent a text message to LC:
I do have to tell you something... I’m so worried
about IUI [intrauterine insemination]... I have been
checking the PO box every single day waiting for my refund
and nothing! My menses is here and I’m supposed to order out
[sic] vial on Monday morning. I’m so upset and depressed bc
I don’t have the extra money right now...
The next day, MG texted LC that “ it looks like everything is all
good. I start clomid[2] tonight and come back in a week. And
I’m so happy that I do have ‘time’ to order our vial!” LC
2
Clomid is a fertility drug.
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responded, “I’m glad everything went ok.”
On February 25, 2015, LC (still overseas) and MG
discussed their relationship through text messages. When MG
asked whether LC was having second thoughts about having a child,
LC responded that she “want[ed] to make sure we are truly good
before we start a family,” and “want[ed] a child more than
anything but [wanted] them to have parents that adore each other
as well as them.” MG asked LC whether she was “backing out.” LC
responded, “What are you talking about backing out? I have
always wanted a child[.]” LC stated that she was “concerned
about us. I want a loving family that respects each other[.]”
The text message exchange ended when MG responded:
[MG:] The way (from our previous convos), I’d stres [sic]
taking the pills for he [sic] past few days per doctor’s
orders
[MG:] I have been taking the pills since Monday to
prepare[.]
[MG:] I forgot to tell you that.
[MG:] Night!
The next day, LC responded, “K @ pills.”
On March 2, 2015, a cryobank sent a sperm sample to FIH
and billed it to MG. After an ultrasound appointment, MG texted
LC about the results of the ultrasound, and stated that FIH would
“call [her] later [that day] to let [her] know if we can get IUI
tomorrow or Wednesday.” After several other texts were sent by
MG, LC responded, “Hi honey. Ok. [Talk to you] after my flight.
I love you[.]”
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On March 4, 2015, MG signed FIH’s “Consent for
Intrauterine Insemination.” Because LC was overseas, she did not
sign the consent form. The IUI procedure also took place on
March 4, 2015.
On March 19, 2015, MG informed LC via text message that
she was pregnant. Five hours later, LC responded, “I’sa
pregnant!! I love you baby!!! [. . .] [Good morning] honey
that’s great news to awaken to! [. . .] I get to rub your tummy
and feel our baby[.]” When MG asked LC when they should tell
people about the pregnancy, LC responded, “You tell me when. I’m
telling my mom and brother whenever we do[.]”
Around Mother’s Day 2015, while LC was still deployed,
she wrote a “Future Mother’s Day Card” to MG. Enclosed in the
card was a note to “The Future Mother” from “The Future
Momma/Papa.” The note also contained a poem which referenced
MG’s pregnancy and stated that “[y]ou will cry, you will smile,
you will look into our child[’]s eyes, and we will love you
through it all.” (Emphasis in original.) The note was signed by
LC and after the signature, LC further wrote “I will always be
here for our family!” Similarly, on June 8, 2015, LC addressed a
postcard to “[MG] & Future Son/Daughter,” which stated that LC
had gotten MG “a spa kit to let [her] pamper [herself] and for my
future child I bought you the softest/coolest Iceland bear I
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could find. I love you both! Hope you enjoy your gifts!”
(Formatting altered.)
When LC returned to Hawai#i in September 2015, she
attended both an ultrasound appointment and a lamaze class with
MG.
On October 7, 2015, LC filed a motion for divorce from
MG in the family court. On November 11, 2015, MG gave birth to
the child at Castle Medical Center on O#ahu. The child’s birth
certificate lists MG as the “mother” and LC as the “co-parent”.
At the time that the child was born, LC and MG were not legally
divorced; divorce proceedings were pending.
A. Family Court Trial
On January 11, 2016, LC sought an order in the family
court to disestablish parentage.3 LC also submitted a
declaration with her petition that stated that she “did not sign
any documents stating that she consented to the alleged in vitro
fertilization that lead [sic] to the pregnancy,” that the child
born to MG was not hers, “genetically or otherwise,” and that she
“never held [the] child out to be her own.” (Emphasis in
original).
At trial, MG first called two witnesses to testify as
to LC’s involvement in MG’s medical appointments on O#ahu.
3
The Honorable Matthew J. Viola presided.
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First, Robin Washowsky (Washowsky), the business manager of FIH,
testified about MG’s medical records and LC’s consent to MG’s IUI
procedure. On cross-examination, after being asked to confirm
that there is a line for a partner’s initials on the “Consent to
Receive Cryopreserved Sperm” form, Washowsky was asked how the
absence of a spouse’s signature on a consent form would affect
the patient’s procedure.4 Washowsky responded that “[i]f there’s
a spouse here, we can have them sign. But in the absence of a
spouse, we would still go through with the procedure.” Washowsky
further testified that there were no signatures or initials from
LC anywhere in MG’s FIH medical file. Nevertheless, Washowsky
testified on redirect examination that if FIH received a
withdrawal of consent to an artificial insemination procedure,
the clinic would have a duty to inform the patient of that
withdrawal. Washowsky further stated that there was no evidence
in MG’s medical record that MG was notified of any withdrawal of
consent.
Dr. Emilie Stickley (Dr. Stickley), an OB/GYN at Pali
Women’s Health Center (PWHC), also testified. Dr. Stickley
testified that LC attended a July 2015 medical appointment via
video conference with MG and herself. Regarding the topics
4
As noted, LC did not sign the “Consent for Intrauterine Insemination”
that MG signed on March 4, 2015 before MG received the sperm at FIH.
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discussed during the appointment, Dr. Stickley stated that
neither LC nor MG expressed to her that they no longer wanted to
go through with the pregnancy. After the July 2015 appointment,
Dr. Stickley did not recall any further contact with LC.
MG also testified. On direct examination, when asked
whether she received any documents from FIH before the birth of
the child indicating that LC was trying to withdraw consent, MG
responded “no.” However, when asked on cross-examination whether
she emailed LC copies of the consent to receive sperm that she
herself initialed and signed, MG also testified that she did not.
On the second day of trial, LC testified. LC first
testified that she had no involvement in using FIH or choosing a
sperm donor. While LC admitted that she and MG discussed the
possibility that MG become pregnant by assisted reproduction, LC
also testified that she told MG “several times” beginning in
March 2014 that she did not want to go forward with assisted
reproduction. LC specifically testified:
And before we left –- before I left in January [2015], for
our anniversary we had this big argument where [MG] said
that we should not have children, and I agreed. And then
she brought it back up while I was on deployment, and I
specifically called her and told her this was not the right
time as well as –- she hung up, and that’s how the whole
text message chain started, where again [. . .] I stated
that this was not the right time for us to –- to have a
child.
LC also believed that her text to MG, which read, “I want to make
sure that we are truly good before we start a family” and the
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following exchange, “specifically” demonstrated that LC did not
want to go forward with the pregnancy.
LC also explained that when she received MG’s texts
about taking Clomid pills, she knew that because she was eight
thousand miles away, there “was nothing [she could] do” to stop
MG from taking them. Therefore, LC testified that she just
responded “K at pills.” LC also stated that it was her
understanding that MG was taking the pills “to get ready for the
process.” LC later testified that when MG sent the text telling
her that she was taking Clomid pills, she “called [MG]
immediately and told her to –- to pause.” LC stated that this
was the second time she told MG to stop taking Clomid.
Similarly, regarding MG’s “I’m pregnant” text and LC’s
response, LC testified that she felt there was nothing she could
do to stop MG’s pregnancy:
[LC’S COUNSEL:] What did you mean by “our baby”?
What’s going through your mind when that’s happening?
[. . . .]
[LC:] Oh I believe it was in –- so March. So again,
after [MG] had already done the IUI and it’s confirmed that
she is pregnant –- I mean, like, at this point there’s
absolutely nothing that I knew at that time that I can do.
[. . .] So I mean, I’m stuck, and she’s my wife. So I –- I
guess it’s “our baby.”
[LC’S COUNSEL:] I see.
So did you ever tell your mom and brother that –- that
you were having a baby with –- with [MG] or that [MG’s]
having a baby for you?
[LC:] I –- I told my mother and brother that despite
my wishes, [MG] is pregnant.
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With respect to the postcard to “[MG] & Future
Son/Daughter,” LC first denied that she had ever sent the
postcard. Instead, LC testified that the postcard, along with
the spa kit, was actually in a box of belongings that remained in
LC’s possession until she returned from deployment. LC testified
that she only gave MG these items when she returned home.
Specifically, LC stated:
[LC:] So this is –- again, this was part of my
journal, and there were more entries in my journal of me
just expressing everything. [. . .] I’ve always wanted a
child, and I always thought it would be with [MG]. So I’m
just expressing everything that I want to do, that I want to
actually be able to do. Like –- like, she’s pregnant, and
if it were mine, like, I would be doing all these things. [.
. .]
So I’m just, in this point, trying to figure out –-
like, hey, this is what I want and, like, you are going to
be so loved, and I’m going to get you the best thing from
all the places of the world that I will ever possibly go. [.
. .] So I grabbed –- so bears. I grabbed toiletries. I
grabbed as much stuff as I could from this place as well as
other places in the world that I went.
THE COURT: Can I interrupt for a second. I just want
to clarify something. [. . .] [Y]our testimony is that you
were referring to not the child that [MG] was pregnant with,
but possibly a future child you’d have with [MG]?
[LC:] Yes.
THE COURT: At that point, if I understood your
testimony correctly –- your testimony was that you had told
[MG], “Don’t go through with this procedure till I’m back.”
[LC:] Yes.
THE COURT: And she –- your testimony is that she
ignored your –- your statements and went ahead and got
pregnant anyway. [. . .]
[LC]: Yes.
[. . . .]
THE COURT: So can you –- can you explain to me why
you’re still considering having a child with [MG] in the
future?
[LC:] Again, like, this is –- this is my wife, and I
was trying to reconcile, like things with her. [. . .] And
at this point in time, I’m like, okay, like, yeah, she’s
done all this bad stuff, but [. . .] maybe there’s a chance
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that we can fix this and everything will be all right, even
despite all of this. But more things happened after this
date that was just –- like, “You care nothing about me, and
it’s only about you.” So yeah, this –- this isn’t going to
work.
Regarding the ultrasound appointment and the lamaze
class that she attended with MG after she returned from
deployment, LC testified that because MG did not have a car, she
needed to take her. Specifically, because MG requested a ride to
her lamaze class, LC testified that she drove her to the class
and accompanied her inside.
Finally, LC attempted to enter into evidence two faxes
she sent to Shady Grove and FIH withdrawing consent to an IUI.5
The fax to Shady Grove is dated January 1, 2014 and LC testified
that it was written and sent to the facility a couple of weeks
after LC and MG returned from their honeymoon that same month.
According to the date stamp on the fax, Shady Grove received the
fax on December 9, 2015 (after the child was born).
B. The Family Court Decision and Order
On November 1, 2016, the family court entered a
decision and order concluding that a legal parent/child
relationship existed between LC and the child. The family court
therefore denied LC’s request for an order that she be
5
The family court did not admit the withdrawal fax to FIH into evidence
for lack of foundation. The family court admitted the withdrawal fax to Shady
Grove (Exhibit KK) into evidence by stipulation.
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disestablished as legal parent of the child.
In its order, the family court began by describing what
it believed to be the fundamental issue in this case: “Does a
legal parent/child relationship exist between Petitioner and the
Child?” In order to answer that question, the family court
looked to the UPA, which lists several circumstances in which a
man would presumptively be the “natural father” of a child.
Hawai#i Revised Statutes (HRS) § 584-4(a) (2006).6 Furthermore,
6
HRS § 584-4(a) (2006) provides in relevant part:
Presumption of paternity. (a) A man is presumed to be the
natural father of a child if:
(1) He and the child’s natural mother are or have
been married to each other and the child is born
during the marriage, or within three hundred
days after the marriage is terminated by death,
annulment, declaration of invalidity, or
divorce, or after a decree of separation is
entered by a court;
(2) Before the child’s birth, he and the child’s
natural mother have attempted to marry each
other by a marriage solemnized in apparent
compliance with the law, although the attempted
marriage is or could be declared invalid . . . ;
(3) After the child’s birth, he and the child’s
natural mother have married, or attempted to
marry, each other by a marriage solemnized in
apparent compliance with the law, although the
attempted marriage is or could be declared
invalid . . . ;
(4) While the child is under the age of majority, he
receives the child into his home and openly
holds out the child as his natural child;
(5) Pursuant to section 584-11, he submits to court
ordered genetic testing and the results, as
stated in a report prepared by the testing
laboratory, do not exclude the possibility of
his paternity of the child . . . ;
(6) A voluntary, written acknowledgment of paternity
of the child signed by him under oath is filed
with the department of health[.]
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the family court noted that HRS § 584-21 (2006) provides that in
actions to declare a mother and child relationship, “[i]nsofar as
practicable, the provisions of [the UPA] applicable to the father
and child relationship,” i.e. provisions like HRS § 584-4(a),
“shall apply.”
The family court also noted that Hawaii’s MEA intended
that “there be no legal distinction between same-sex married
couples and opposite-sex married couples with respect to
marriage[.]”7
Applying these statutory provisions to this case, the
family court first determined that HRS § 584-4(a)(1) presumes
that a man is the natural father of a child if “he and the
child’s natural mother are or have been married to each other and
the child is born during the marriage.” Applying that provision
in a gender-neutral fashion as required by HRS § 584-21, the
family court determined that because LC and MG, the child’s
7
HRS § 572-1.8 (Supp. 2014) provides:
Interpretation of terminology to be gender-neutral. When
necessary to implement the rights, benefits, protections,
and responsibilities of spouses under the laws of this
State, all gender-specific terminology, such as “husband”,
“wife”, “widow”, “widower”, or similar terms, shall be
construed in a gender-neutral manner. This interpretation
shall apply to all sources of law, including statutes,
administrative rules, court decisions, common law, or any
other source of law.
However, the family court’s decision does not actually rely on the MEA
to conclude that the marital presumption of parentage applied to LC.
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natural mother, were married to each other at the time the child
was born, LC is presumed to be the child’s legal parent.8
The family court then explained that under HRS § 584-
4(b) (2006), the presumption of parentage was rebuttable:
A presumption under this section may be rebutted in an
appropriate action only by clear and convincing evidence.
If two or more presumptions arise which conflict with each
other, the presumption which on the facts is founded on the
weightier considerations of policy and logic controls[.]
The family court noted that “[i]n the context of a child
conceived through artificial insemination by donor during a
marriage, the presumption of legal parentage incorporates a
rebuttable presumption of consent to the artificial insemination.
Only clear and convincing evidence can rebut the presumption of
consent and therefore legal parentage.” For support, the family
court noted that several other jurisdictions imposed a
presumption of consent to artificial insemination by the spouse
of a woman who gives birth to a child by that procedure.
Therefore, in order for LC to rebut the presumption
that she was the legal parent of the child in this case, the
family court explained that LC would need to prove, by clear and
convincing evidence, that she did not consent to MG undergoing
the IUI procedure that resulted in her pregnancy and the birth of
8
However, the family court also concluded that HRS § 584-4(a)(4) “d[id]
not create a presumption of a parent-child relationship between [LC] and [MG],
because [LC] did [not] receive the Child into her home and hold out the Child
as her natural child.”
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the child.
The family court then made several credibility
determinations regarding LC’s actions and testimony. It found
that:
68. MG’s Exhibit KK is a letter dated January 1, 2014 from
[LC] to Shady Grove. The letter states that [LC]
withdraws her consent to IUI, IVF or any other
procedure performed on MG and that any child born to
[MG] without [LC’s] consent “will not be my child or
responsibility in any way.”
69. There is no credible evidence that [LC] sent the
letter marked as Ex. KK to Shady Grove prior to the
birth of the Child.
70. There is no credible evidence that [LC] gave a copy of
the letter marked as Ex. KK to [MG] or informed her of
its contents prior to the birth of the Child.
71. [MG] did not become aware of the letter marked as Ex.
KK or its content until after the birth of the Child.
. . . .
74. There is no credible evidence that prior to [MG]
undergoing the IUI procedure on March 4, 2015 or prior
to the Child’s birth that [LC] informed FIH that she
did not consent to or that she objected to [MG]
undergoing an IUI or any other artificial insemination
procedure to become pregnant.
75. Prior to March 4, 2015, [LC] did not inform [MG] that
she objected to and/or did not consent to [MG]
undergoing an IUI or any other artificial insemination
procedure at FIH.
76. [LC’s] testimony that prior to [MG] undergoing the IUI
artificial insemination procedure on March 4, 2015 she
clearly verbally informed [MG] that she objected to
[MG’s] attempt to get pregnant at that time was not
credible.
77. On November 11, 2015, [MG] gave birth to the Child at
Castle Medical Center.
78. [MG] is the Child’s natural mother.
79. Both [LC] and [MG] are listed as the Child’s parents
on his birth certificate. [LC] did not consent to her
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being listed as a parent on the birth certificate.
Accordingly, the family court determined:
108. [LC] did not meet her burden of proving by clear and
convincing evidence that she did not consent to [MG]
undergoing the artificial insemination procedure that
resulted in her pregnancy and the birth of the Child.
[LC] therefore has failed to rebut the presumption
under HRS § 584-4(a)(1) that she is a legal parent of
the Child.
109. Accordingly, the court finds and concludes that a
legal parent/child relationship exists between [LC]
and the Child, i.e., that [LC] is a legal parent of
the Child, and therefore [LC’s] request for an order
that she be disestablished as a legal parent of the
Child is denied.[ 9]
C. Appellate Proceedings
LC filed a notice of appeal on November 28, 2016.10
In her opening brief, LC raised two points of error, which we
construe to present three arguments. First, LC argued that the
family court erred when it decided that LC was the legal parent
of the child even when she had no genetic link with the child.
Second, LC argued that the family court erred when it decided
that the marital presumption of parentage, HRS § 584-4(a)(1),
applied to LC. And third, LC contended that even if the marital
presumption applied, the family court erred when it decided that
9
The family court subsequently made related findings of fact and
conclusions of law regarding custody, visitation, child support, and
attorneys’ fees and costs.
10
Respondent-Appellee Child Support Enforcement Agency (CSEA) was made a
“nominal appellee” in this case. See Hawai#i Rules of Appellate Procedure
(HRAP) 2.1(b). As a nominal appellee, the CSEA “assert[ed] no interest in the
outcome of the appeal.”
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she did not rebut the presumption.
MG filed an answering brief requesting that this court
affirm the family court’s determination that LC is the legal
parent of the child. MG contended that the UPA’s “marital
presumption of parentage applies to anyone –- whether male or
female –- who is married to a woman who gives birth,” and that LC
“failed to produce clear and convincing evidence that she did not
consent to the conception of the child.”
The State of Hawai#i filed an amicus brief which
adopted MG’s position with respect to the marital presumption of
parentage, i.e., that “the spouse of a woman who delivers a child
must be deemed the presumptive legal parent of the child pursuant
to HRS § 584-4(a)(1) (the “marital presumption”), regardless of
any genetic link to the child.”11
On August 9, 2017 LC filed an application for transfer
to this court, which was granted.
II. STANDARDS OF REVIEW
A. Statutory Interpretation
“The interpretation of a statute is a question of law
reviewable de novo.” In re Doe, 95 Hawai#i 183, 190, 20 P.3d
616, 623 (2001) (citations and ellipses omitted). This court’s
11
The State did not take any position on whether LC failed to show by
clear and convincing evidence that she did not consent to MG’s pregnancy.
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statutory construction is guided by established rules:
When construing a statute, our foremost obligation is to
ascertain and give effect to the intention of the
legislature, which is obtained primarily from the language
contained in the statute itself. And we must read statutory
language in the context of the entire statute and construe
it in a manner consistent with its purpose.
Id. at 191, 20 P.3d at 624 (quoting Gray v. Admin. Dir. of the
Court, 84 Hawai#i 138, 144, 931 P.2d 580, 586 (1997)).
It is a cardinal rule of statutory construction that courts
are bound, if rational and practicable, to give effect to
all parts of a statute, and that no clause, sentence, or
word shall be construed as superfluous, void, or
insignificant if a construction can be legitimately found
which will give force to and preserve all the words of the
statute.
County of Kaua#i v. Hanalei River Holdings, Ltd., 139 Hawai#i 511,
526, 394 P.3d 741, 756 (2017) (quoting Camara v. Agsalud, 67 Haw.
212, 215-16, 685 P.2d 794, 797 (1984)).
B. Family Court Decisions
Generally, the “family court possesses wide discretion
in making its decisions and those decisions will not be set aside
unless there is a manifest abuse of discretion.” In re Doe, 95
Hawai#i at 189, 20 P.3d at 622 (citing In Interest of Doe, 84
Hawai#i 41, 46, 928 P.2d 883, 888 (1996)). “Under the abuse of
discretion standard of review, the family court’s decision will
not be disturbed unless the family court disregarded rules or
principles of law or practice to the substantial detriment of a
party litigant[, and its] decision clearly exceed[ed] the bounds
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of reason.” In Interest of Doe, 84 Hawai#i at 46, 928 P.2d at
888 (alterations in original).
C. Findings of Fact and Conclusions of Law
The family court’s findings of fact are reviewed on
appeal under the “clearly erroneous” standard. Fisher v. Fisher,
111 Hawai#i 41, 46, 137 P.3d 355, 360 (2006).
A [finding of fact] is clearly erroneous when (1) the record
lacks substantial evidence to support the finding, or (2)
despite substantial evidence in support of the finding, the
appellate court is nonetheless left with a definite and firm
conviction that a mistake has been made. “Substantial
evidence” is credible evidence which is of sufficient
quality and probative value to enable a person of reasonable
caution to support a conclusion.
Id.
“The family court’s [conclusions of law] are reviewed
on appeal de novo, under the right/wrong standard.” Id. (citing
In re Doe, 95 Hawai#i at 190, 20 P.3d at 623). Conclusions of
law are “not binding upon an appellate court and are freely
reviewable for their correctness.” Id. (citing In re Doe, 95
Hawai#i at 190, 20 P.3d at 623).
D. Credibility of Witnesses
“[I]t is well-settled that an appellate court will not
pass upon issues dependent upon the credibility of witnesses and
the weight of the evidence; this is the province of the trier of
fact.” In re Doe, 95 Hawai#i at 190, 20 P.3d at 623 (quoting
State v. Jenkins, 93 Hawai#i 87, 101, 997 P.2d 13, 27 (2000)).
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III. DISCUSSION
On appeal, LC alleges that the family court erred in 1)
denying LC’s petition to disestablish parentage because the UPA
“requires there to be a genetic link” between LC and the child;
2) deciding that a legal parent-child relationship existed
between LC and the child, because the statutory marriage
presumption does not apply; and 3) even if the marriage
presumption applies, deciding that LC did not rebut the
presumption.
LC states in her opening brief that “all this case
really comes down to is whether [LC] may be deemed to be the
Child’s legal parent simply because these two women were married
when the Child was conceived through [IUI] and born.” The answer
to this question is, however, only half of the analysis. If the
marital presumption of paternity applies to LC, then we must also
determine whether LC rebutted that presumption. Both questions
present issues of first impression for this court.
For the reasons stated below, we hold that the UPA’s
marital presumption of paternity equally applies to women in
same-sex marriages. Because it is undisputed that LC was married
to MG at the time that the child was born, she is presumed to be
the legal parent of the child. We further conclude that LC did
not rebut the presumption of parentage.
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A. The marital presumption of paternity applies to LC.
LC argues that there are two reasons why the UPA’s
presumption of paternity cannot apply to her. First, LC argues
that the UPA requires a genetic link in order to establish a
legal parent-child relationship, and therefore it is impossible
for LC to be the “father” of the child.12 Second, LC contends
that the MEA was not intended to broaden the scope of the UPA to
apply it to spouses in same-sex marriages.
The language and purpose of the UPA and the MEA require
us to reject these arguments. First, the UPA does not require a
genetic or biological connection to establish a legal parent-
child relationship. Second, the MEA requires that every gender-
specific statutory provision of law regarding marriage be
interpreted in a gender-neutral manner.
1. The UPA does not require a biological connection to
establish a legal parent-child relationship.
Both the language and the purpose of the UPA indicate
that a genetic or biological connection is not required for a
legal parent-child relationship to exist. The UPA’s statutory
language indicates that legal parentage may arise even if there
12
LC appears to make this argument twice in her opening brief. In her
first point of error, LC argues that because the UPA requires a genetic link
between someone like her and the child, the UPA cannot apply to her. In her
second point of error, LC argues that the UPA’s presumption of paternity
“[h]inges on ‘Paternity’ and Genetics.” We construe her assertions to raise
the same argument.
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is no biological connection to the child. The UPA’s presumption
of paternity provision, HRS § 584-4(a), describes six different
ways in which a person is presumed to be the legal parent of a
child.13 But only one, HRS § 584-4(a)(5) (court-ordered genetic
testing) is plainly based on biology. The others, such as
written acknowledgment of parentage, consent to be the parent on
a child’s birth certificate, and the presumption at issue here --
marriage to the child’s natural mother -- are not. Similarly,
the UPA’s list of evidence relating to paternity in HRS § 584-12
is not limited to evidence of a biological connection to the
child.14 Evidence may also include “[a] voluntary, written
13
See supra note 6.
14
HRS § 584-12 (2006) provides a non-exhaustive list of evidence relating
to paternity:
Evidence relating to paternity. Evidence relating to
paternity may include:
(1) Evidence of sexual intercourse between the
mother and the alleged father at any possible
time of conception;
(2) An expert’s opinion concerning the statistical
probability of the alleged father’s paternity
based upon the duration of the mother’s
pregnancy;
(3) Genetic test results, including blood test
results, weighted in accordance with evidence,
if available, of the statistical probability of
the alleged father’s paternity;
(4) Medical or anthropological evidence relating to
the alleged father’s paternity of the child
based on tests performed by experts. If a man
has been identified as a possible father of the
child, the court may, and upon request of a
party shall, require the child, the mother, and
the man to submit to appropriate tests;
(5) A voluntary, written acknowledgment of
(continued...)
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acknowledgment of paternity” (HRS § 584-12(5)) or “all other
evidence relevant to the issue of paternity” (HRS § 584-12(7)).
This indicates that the legal parent determination does not turn
on whether the person has any biological connection to the child.
Second, this court has previously cited the purpose of
the UPA to hold that legal parentage does not require a
biological connection to the child. In holding that a mother was
estopped from filing a paternity action against the child’s
biological father after a divorce decree declared another man
(her ex-husband) to be the legal father of the child, this court
noted that even though the defendant was the biological father,
the UPA did not require that a child’s legal father be his or her
biological one. Doe v. Doe, 99 Hawai#i 1, 7-8, 52 P.3d 255, 261-
62 (2002). Instead, we said that the UPA was meant “to ensure
that every child, to the extent possible, has an identifiable
legal father. Although this goal will usually overlap with the
desire of a child to know the identity of his or her biological
14
(...continued)
paternity;
(6) Bills for pregnancy and childbirth, including
medical insurance premiums covering this period
and genetic testing, without the need for
foundation testimony or other proof of
authenticity or accuracy, and these bills shall
constitute prima facie evidence of amounts
incurred for such services or for testing on
behalf of the child; and
(7) All other evidence relevant to the issue of
paternity of the child.
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father, the two are not always the same.” Id. at 8, 52 P.3d at
262 (emphasis added).15 Similarly, in Inoue v. Inoue, the ICA
held that a mother was estopped from challenging the legal status
of the child’s presumptive father, even when it was established
that he was not the “birth” father. 118 Hawai#i 86, 94, 185 P.3d
834, 843 (App. 2008), cert. denied, 118 Hawai#i 194, 186 P.3d 629
(2008).
Therefore, LC is simply incorrect when she contends
that the UPA requires a biological connection in order for a
person to be presumed the legal parent of a child. To the
contrary, the statutory language and the purpose of the UPA
indicate that presumptions of paternity are not restricted to
persons that share a biological or genetic link with the child.
Finally, the UPA further suggests that, despite the
gender-specific language in HRS § 584-4(a), the presumptions of
paternity equally apply in determining the existence or
nonexistence of a mother-child relationship. HRS § 584-21 states
that in actions “to determine the existence or nonexistence of a
mother and child relationship[, i]nsofar as practicable, the
15
In arguing that the UPA requires some “genetics threshold” in order to
determine the legal parent of a child, LC cites the dissent in Doe, which
instead argued that the UPA’s purpose was to ensure “that every child be
assured of some legal relationship to his or her natural or biological
father.” 99 Hawai#i at 24, 52 P.3d at 278 (Acoba, J., dissenting) (emphasis
in original).
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provisions of [the UPA] applicable to the father and child
relationship shall apply.” We conclude that it would be
practicable to apply the provisions of HRS 584-4(a) to the mother
and child relationship because, as discussed above, a biological
connection is not necessary to establish a presumption of
parentage. Therefore, HRS § 584-21 itself suggests that the
presumptions of paternity in HRS § 584-4(a) similarly apply when
determining whether a woman is the legal parent of a child.
2. The MEA intended to construe every gender-specific
statutory provision of law regarding marriage in a
gender-neutral manner.
Even if the language of the UPA were not enough to
convince us that the statutory presumptions of paternity apply to
both men and women, the MEA leaves no doubt that the marital
presumption must equally apply to women in same-sex marriages.
The Legislature adopted the MEA in 2013 to “recognize marriages
between individuals of the same sex in the State of Hawai#i.” H.
Stand. Comm. Rep. No. 4, in 2013 House Journal, at 189. In so
doing, the Legislature wanted to ensure that any interpretation
of marriage terminology be gender-neutral. The MEA specifically
provides,
Interpretation of terminology to be gender-neutral. When
necessary to implement the rights, benefits, protections,
and responsibilities of spouses under the laws of this
State, all gender-specific terminology, such as “husband”,
“wife”, “widow”, “widower”, or similar terms, shall be
construed in a gender-neutral manner. This interpretation
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shall apply to all sources of law, including statutes,
administrative rules, court decisions, common law, or any
other source of law.
HRS § 572-1.8 (Supp. 2014) (emphases added).
The gender-neutral provision speaks for itself: all
laws regarding the rights and responsibilities of spouses must be
interpreted in a gender-neutral manner.16 The marital
presumption of parentage is a “source of law” regarding marriage,
and therefore it must be construed in a gender-neutral manner
pursuant to HRS § 572-1.8.17 Once we apply the gender-neutral
provision of the MEA to the UPA’s marital presumption of
paternity, HRS § 584-4(a) reads: “[a] [person] is presumed to be
the natural [parent] of a child if: (1) [The person] and the
child’s natural mother are or have been married to each other and
16
Furthermore, legislative history of the MEA reveals that the Legislature
intended that “all rights, benefits, protections, and responsibilities of
parentage derived from a marriage relationship under state law shall apply
equally to all married persons regardless of gender[.]” See H. Stand. Comm.
Rep. No. 4, in 2013 House Journal, at 189 (emphasis added).
It appears that this provision was not included in the final version of
the statute (and only the more general “gender-neutral provision” of HRS §
572-1.8 remained) because the House Standing Committee believed that the
“language relating to the gender-neutral application of marriage-derived
parentage rights, benefits, protections, and responsibilities [was]
superfluous.” H. Stand. Comm. Rep. No. 4, in 2013 House Journal, at 192.
17
This interpretation is in conformity with at least one other
jurisdiction that has a similarly-worded marriage equality act. See Wendy G-
M. v. Erin G-M., 985 N.Y.S.2d 845, 860 (N.Y. Sup. Ct. 2014) (“[T]he MEA
mandates that [all laws] are gender neutral with respect to all the legal
benefits, obligations, etc. arising from marriage. In [a previous case, the
Appellate Division] predicated the husband’s parental status on the fact of
marriage, without regard to the husband’s biological connection to the child
or to his fertility in general. To impose the presumption of consent to
[artificial insemination] for couples in a heterosexual marriage, but not for
those in a same-sex one . . . would reverse the gender-neutral approach to New
York’s families canonized in the MEA.”).
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the child is born during the marriage, or within three hundred
days after the marriage is terminated[.]”
In arguing that the marital presumption of paternity
cannot apply to her, LC contends that applying the MEA’s gender-
neutral provision to the UPA would unfairly discriminate against
women attempting to disprove legal parentage. This argument is
unavailing. LC examines HRS § 584-12 (“evidence relating to
paternity”) and argues that if we replace every instance of the
word “father” with “mother” in that provision, only three of the
seven listed types of evidence could be used by a woman to rebut
a presumption of parentage, while a man would still be entitled
to use all seven. Because some avenues of relief in HRS § 584-12
are closed to a woman, LC argues that applying the MEA to the UPA
would actually discriminate against a woman attempting to
disprove parentage. But LC ignores the catch-all basis in HRS §
584-12(7), i.e. “[a]ll other evidence relevant to the issue of
paternity of the child.” This basis leads us to conclude that
any difference in the number of methods available to women and
men to prove parentage are irrelevant, because HRS § 584-12(7)
explicitly permits the use of any relevant evidence to prove (or
disprove) parentage.
To conclude, Hawaii’s UPA does not require a biological
or genetic link in order to establish a parent-child
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relationship. To require such a connection would be contrary to
the language and the purpose of the UPA. Additionally, the MEA’s
“gender-neutral interpretation” provision also requires, when
necessary to implement a right or responsibility of a spouse,
that all gender-specific terminology be construed in a gender-
neutral manner. See HRS § 572-1.8. We therefore hold that the
marital presumption of parentage applies equally to women in
same-sex marriages.18 Because it is undisputed that LC and MG
were married at the time that the child was born, LC is presumed
to be the legal parent of the child.
B. LC did not rebut the presumption of parentage by clear and
convincing evidence.
LC next argues that even if she is presumed to be the
legal parent of the child, she “met her burden to rebut the
presumption by clear and convincing evidence,” and therefore
concludes that the family court erred in denying her petition for
disestablishment of parentage. LC notes that
the totality of the factual circumstances that existed here
do not warrant finding the existence of a parent-child
relationship between LC and the Child because LC did not
18
While we need not address MG’s additional constitutional argument, see
DW Aina Le#a Dev., LLC v. Bridge Aina Le#a, LLC., 134 Hawai#i 187, 217-18, 339
P.3d 685, 715-16 (2014), at least one other jurisdiction has recently held
that not applying the marital presumption of parentage to same-sex spouses
violates the Fourteenth Amendment to the United States Constitution. See
McLaughlin v. Jones, 401 P.3d 492, 498 (Ariz. 2017) (“The marital paternity
presumption is a benefit of marriage, and following [Pavan v. Smith, 137 S.
Ct. 2075 (2017) and Obergefell v. Hodges, 135 S. Ct. 2584 (2015)] the state
cannot deny same-sex spouses the same benefits afforded opposite-sex
spouses.”).
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consent to the [IUI] procedure, did not participate in the
conception or birth of the Child, was not present when the
Child was born, did not give her name to the Child . . . ,
and has never acted as co-parent of the [C]hild.
MG counters that LC “fail[ed] to show that the Family
Court was clearly erroneous in its key finding: she ‘did not meet
her burden of proving by clear and convincing evidence that she
did not consent to [MG] undergoing the artificial insemination
procedure that resulted in her pregnancy and the birth of the
Child.’” (Second alteration in original.) MG argues that “there
was a lengthy, documented history of joint action by LC and MG
that both predated and postdated [the child’s] conception, all
evidencing LC’s consistent consent.”
Based on the record of this case, I conclude that the
family court did not err in concluding that LC did not prove, by
clear and convincing evidence, that she did not consent to MG
undergoing an artificial insemination procedure that resulted in
the birth of the child.
1. In cases of artificial insemination, one way to rebut
the presumption of parentage is to demonstrate, by
clear and convincing evidence, lack of consent to the
artificial insemination procedure.
Once the presumption of paternity has been established,
the UPA also provides that it may be rebutted by clear and
convincing evidence:
A presumption under this section may be rebutted in an
appropriate action only by clear and convincing evidence.
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If two or more presumptions arise which conflict with each
other, the presumption which on the facts is founded on the
weightier considerations of policy and logic controls. The
presumption is rebutted by a court decree establishing
paternity of the child by another man.
HRS § 584-4(b) (2006).
Both parties agree that one way in which a party may
rebut the presumption of parentage is to demonstrate, by clear
and convincing evidence, that he or she did not consent to the
spouse’s artificial insemination procedure, and operated under
that assumption in the family court and on appeal. Neither party
challenges the family court’s conclusion of law that “[i]n the
context of a child conceived through artificial insemination by
donor during a marriage, the presumption of legal parentage
incorporates a rebuttable presumption of consent to the
artificial insemination.”
However, the Majority holds that a spouse cannot rebut
the marital presumption of parentage through demonstrating by
clear and convincing evidence a lack of consent to the artificial
insemination procedure that led to the birth of the child.
Majority at 1. To the extent that this position was not argued
or briefed by the parties at any point in these proceedings, the
Majority errs in raising sua sponte the validity of this method
of rebuttal on appeal. Cox v. Cox, 138 Hawai#i 476, 491, 382
P.3d 288, 303 (2016) (Recktenwald, C.J., dissenting) (“We need
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not and should not sua sponte address an issue that was never
raised or disputed by the parties at any point.” (emphasis in
original)). Moreover, as I interpret the statutory language of
the UPA, I conclude that the UPA does not bar a party from
attempting to rebut the presumption of parentage in an artificial
insemination case by proving that he or she did not consent to
the artificial insemination procedure.
Accordingly, I respectfully dissent from the Majority’s
decision to hold sua sponte that a spouse may not rebut the
presumption of parentage by demonstrating lack of consent to an
artificial insemination procedure.
a. The plain language of HRS § 584-4(b) does not
prevent a presumptive parent from rebutting the
presumption by demonstrating lack of consent to an
artificial insemination procedure.
If this issue were properly raised, I would agree with
the Majority that evaluating whether a certain method of rebuttal
is permitted begins with the language of HRS § 584-4(b) itself.
Majority at 3. While it is true that HRS § 584-4(b) does not
provide us with much guidance as to how a presumption of
parentage under HRS § 584-4(a) may be rebutted, it broadly
provides that “[a] presumption under this section may be rebutted
in an appropriate action only by clear and convincing evidence.”
Allowing a presumptive parent to rebut the presumption of
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parentage in a birth by artificial insemination by demonstrating,
by clear and convincing evidence, that he or she did not consent
to the artificial insemination procedure does not conflict with
the plain language of HRS § 584-4(b).
The Majority, however, contends that the Legislature’s
decision to remove the Uniform Parentage Act’s (1973) artificial
insemination provision from the Hawai#i UPA proves that the
Legislature rejected the use of evidence of non-consent to an
artificial insemination procedure as a means to rebut a
presumption of parentage. Majority at 8 n.5. I respectfully
disagree.
Section 5 of the Uniform Parentage Act (1973) provided
a means to establish parentage in cases of artificial
insemination.19 Specifically, the provision stated that if a
husband consented in writing to his wife’s artificial
19
Uniform Parentage Act section 5 (Unif. Law Comm’n 1973) provided in
relevant part,
(a) If, under the supervision of a licensed physician
and with the consent of her husband, a wife is inseminated
artificially with semen donated by a man not her husband,
the husband is treated in law as if he were the natural
father of a child thereby conceived. The husband’s consent
must be in writing and signed by him and his wife. The
physician shall certify their signatures and the date of the
insemination, and file the husband’s consent with the [State
Department of Health], where it shall be kept confidential
and in a sealed file. However, the physician’s failure to
do so does not affect the father and child relationship.
(Alteration in original.)
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insemination procedure, he would be treated as the natural father
of the child conceived by that procedure. Unif. Parentage Act
section 5 (1973). The Legislature expressly removed section 5
from the bill that eventually became our UPA. See H. Stand.
Comm. Rep. No. 190, in 1975 House Journal, at 1019.
From this removal, the Majority concludes that the
Legislature “specifically rejected a requirement of consent to
artificial insemination for a husband to be recognized as the
father of his wife’s child conceived through artificial
insemination.” Majority at 8 n.5. But because there is no
evidence in the legislative history explaining why the artificial
insemination provision was not adopted, we can only speculate as
to the reasons for its removal.20
Moreover, even if the Majority were correct to assume
that the removal of section 5 signaled an intent to reject a
requirement of consent to artificial insemination to become a
20
For example, the Legislature may have thought that section 5’s formal
consent procedures to establish paternity, i.e. “the husband’s consent must be
in writing and signed by him and his wife,” were unnecessarily restrictive and
against public policy, and thus deleted it from the bill. See Laura WW. v.
Peter WW., 856 N.Y.S.2d 258, 261-62 (N.Y. App. Div. 2008) (stating that even
when New York’s artificial insemination statute could not establish husband’s
paternity because he did not consent in writing, “equity and reason require a
finding that an individual who participated in and consented to [an artificial
insemination procedure] to bring a child into the world can be deemed the
legal parent of the resulting child”).
This does not necessarily mean that the Legislature meant to entirely
bar a spouse’s consent to the artificial insemination procedure as a means to
establish parentage. And this would not mean that the Legislature meant to
entirely bar non-consent as a means to rebut the presumption of parentage.
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legal parent of the child, it does not follow that the
Legislature also wished to bar a presumptive parent from
rebutting the presumption by demonstrating lack of consent to the
artificial insemination procedure. As the Majority points out,
section 5 provided another means to establish parentage in
artificial insemination situations, and “was in any event not
intended to provide a method of rebutting parentage.” Majority
at 11. Therefore, the removal of this provision does not
inherently indicate an intent to bar a method to rebut the
presumption of parentage. Moreover, HRS § 584-4(b) itself does
not contain any limiting language, and to the contrary, states
broadly that “[a] presumption under [HRS § 584-4(a)] may be
rebutted in an appropriate action only by clear and convincing
evidence.”
Because the omission of section 5 from the UPA does not
conclusively demonstrate an intent to bar presumptive parents
from attempting to rebut the presumption by demonstrating lack of
consent to an artificial insemination procedure, I turn, as the
parties did, to the “evidence relating to paternity” provision of
HRS § 584-12 for further guidance. HRS § 584-12(7) provides that
evidence related to paternity may include “[a]ll other evidence
relevant to the issue of paternity of the child.” Evidence of
non-consent to an artificial insemination procedure is relevant
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to the issue of parentage, so HRS § 584-12(7) would thus allow
evidence of non-consent to be introduced.
This leads me to conclude that HRS §§ 584-4(b) and 584-
12(7) would permit a presumptive parent, whether a man or a woman
(see HRS § 584-21), to prove, by clear and convincing evidence,
lack of consent to the artificial insemination procedure as a
means to rebut a presumption of parentage.
While the Majority acknowledges that the marital
presumption of parentage under HRS § 584-4(a)(1) is rebuttable in
certain circumstances, Majority at 4, it is difficult to see how
the Majority’s approved methods of rebuttal could apply in the
situation here. First, the Majority notes that the presumption
“can be rebutted by another HRS § 584-4(a) presumption of
parentage if the other presumption ‘is founded on the weightier
considerations of policy and logic.’” Majority at 4 (citing HRS
§ 584-4(b)). But because only one presumption exists here, this
ground cannot be used to rebut the presumption of parentage in
this case.
The Majority also suggests that evidence of the
existence of another common law “parent,” i.e., a “de facto,”
“psychological,” or “intended” parent, or evidence that
disestablishment of parentage is in the best interests of the
child, might perhaps rebut the marital presumption of parentage.
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Majority at 14 n.8.
But in my view, these methods of rebuttal also do not
provide a person in this situation with a meaningful way to rebut
the presumption of parentage. First, in the case of another “de
facto” parent, HRS § 584-4(a)(4) already presumes parentage if,
“[w]hile the child is under the age of majority, [the person]
receives the child into [the person’s] home and openly holds out
the child as his [or her] natural child.” In that situation, HRS
§ 584-4(b) instructs that the presumption “founded on the
weightier considerations of policy and logic controls.” But as
just noted, this method cannot apply in situations, like here,
where only one presumption in favor of one individual arises.
Second, the Majority already appears to have held that permitting
a spouse to rebut a presumption of parentage based on lack of
consent to an artificial insemination procedure “does not factor
in the best interests of the child.” Majority at 18-19.
Where the language of HRS § 584-4(b) does not bar
evidence of non-consent to an artificial insemination procedure
to rebut a presumption of parentage, and where the Legislature’s
decision to remove a means to establish parentage does not
clearly indicate a rejection of a means to rebut a presumption of
parentage, I believe the Majority errs when it concludes that the
UPA bars evidence of lack of consent to an artificial
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insemination procedure as a means to rebut a presumption of
parentage. This is especially the case when the Majority
provides no other meaningful way in which to rebut the marital
presumption of parentage in a case involving an artificial
insemination procedure.21
b. The Legislature’s decision to impose a high burden
of proof on any presumptive parent attempting to
rebut the presumption of parentage considers the
best interests of the child.
Amongst the many policy arguments the Majority employs
to reject the parties’ assumption that evidence of non-consent to
an artificial insemination procedure could rebut the marital
presumption of parentage, the Majority suggests that such a
method of rebuttal would not be in the best interests of the
child. Majority at 18-19. I respectfully disagree. Because the
Legislature decided to impose a “clear and convincing” standard
of proof on any presumptive parent attempting to rebut a
presumption of parentage, this high burden addresses the
Majority’s concerns regarding the best interests of the child.
21
While the Legislature might not have made “a distinction regarding the
means by which a parentage presumption can be rebutted based on how a child is
brought into being,” Majority at 14 n.7, issues of consent in situations where
sexual intercourse results in the birth of a child can be evaluated
differently under the UPA.
In the event that a spouse wishes to disestablish parentage of a child
born by sexual intercourse, a court in that situation may rely on genetic
testing to determine paternity, and in some situations, must order genetic
testing to determine paternity. HRS § 584-13(c) (2006). Genetic testing
procedures are effectively unavailable in artificial insemination cases where
the presumptive parent is not biologically related to the child.
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The “clear and convincing” standard of proof is defined
as an
intermediate standard of proof greater than a preponderance
of the evidence . . . . It is that degree of proof which
will produce in the mind of the trier of fact a firm belief
or conviction as to the allegations sought to be
established, and requires the existence of a fact be highly
probable.
Kekona v. Abastillas, 113 Hawai#i 174, 180, 150 P.3d 823, 829
(2006) (citations omitted). As this court stated in Kekona, a
clear and convincing standard of proof is “required to sustain
claims which have serious social consequences or harsh or far
reaching effects on individuals . . . .” Id. at 181, 150 P.3d at
830. In these circumstances, the lower “‘preponderance of the
evidence’ [standard] has been expressly disapproved as an
insufficient measure of the proof required.” Id. (citing Iddings
v. Mee-Lee, 82 Hawai#i 1, 14, 919 P.2d 263, 276 (1996)).
By imposing a clear and convincing standard of proof
here, the Legislature determined that it would protect the best
interests of the child by making it “difficult” for presumptive
parents to rebut the presumption of parentage. See Unif.
Parentage Act § 4 cmt. (1973) (“In accordance with current law in
most states relating to the rebuttal of a presumption of
‘legitimacy’, the presumption is difficult to rebut in that proof
must be made by ‘clear and convincing evidence.’”). Accordingly,
an equivalent burden on the presumptive parent in an artificial
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insemination case to demonstrate that he or she did not consent
to the artificial insemination procedure similarly considers the
best interests of the child.
This position is shared by other jurisdictions which
have concluded, even in the absence of an artificial insemination
provision, that placing a high burden on a spouse to demonstrate
that he or she did not consent to the artificial insemination
procedure ensures that the best interests of the child are
considered. For example, in K.S. v. G.S., 440 A.2d 64, 66 (N.J.
Super. Ct. Ch. Div. 1981), the New Jersey court concluded that,
even in the absence of a statutory artificial insemination
provision, “[p]ublic policy considerations seeking to prevent
children born as a result of [artificial insemination] procedures
from becoming public charges . . . require that a presumption of
consent exist and that a strong burden be placed on one seeking
to rebut the presumption.” Id. at 68.
Similarly, in In re Baby Doe, 353 S.E.2d 877, 878 (S.C.
1987), the South Carolina Supreme Court also examined spousal
consent to an artificial insemination procedure in the absence of
a statutory provision. It first looked to other jurisdictions
and noted that “[a]lmost exclusively, courts which have addressed
[issues of artificial insemination] have assigned paternal
responsibility to the husband based on conduct evidencing his
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consent to the artificial insemination.” Id. Accordingly, the
South Carolina Supreme Court “[held] that a husband who consents
for his wife to conceive a child through artificial insemination,
with the understanding that the child will be treated as their
own, is the legal father of the child born as a result of the
artificial insemination[.]” Id. These cases, while not binding
on this court, indicate that imposing a high burden on a
presumptive parent in an artificial insemination case to prove,
by clear and convincing evidence, that he or she did not consent
to the artificial insemination procedure more closely adheres to
the statutory language and intent of HRS § 584-4(b).22
HRS § 584-4(b) provides that a presumptive parent must
be allowed an opportunity to rebut the presumption of parentage.
Nothing in the UPA’s statutory language nor in the legislative
history indicates to me that a presumptive parent in a birth by
artificial insemination is barred from presenting evidence that
he or she did not consent to the artificial insemination
procedure to rebut the presumption. Moreover, the Majority does
22
This position does not conflict with our opinion in Doe. I generally
agree that HRS Chapter 584 was adopted “to ensure that every child, to the
extent possible, has an identifiable legal father.” Doe, 99 Hawai#i at 8, 52
P.3d at 262 (emphasis added). The language of HRS § 584-4(b) mirrors that
concern by permitting a spouse to rebut the presumption of parentage “only by
clear and convincing evidence.”
Indeed, no court of which I am aware has actually concluded that a
spouse rebutted the presumption of parentage by demonstrating lack of consent
to an artificial insemination procedure. See Section III(B)(2) infra.
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not provide any meaningful way to rebut the marital presumption
where only one presumption arises, and where an artificial
insemination procedure leads to the birth of a child. This
effectively makes a rebuttable presumption irrebuttable, and
cannot be what the Legislature intended.23
While I would not have addressed this issue in the
first instance, for all of these reasons, I would hold that one
way that a presumptive parent may rebut the marital presumption
of parentage in cases of artificial insemination is to
demonstrate, by clear and convincing evidence, that he or she did
not consent to the spouse’s artificial insemination procedure.
2. LC did not demonstrate by clear and convincing evidence
that she did not consent to MG’s artificial
insemination procedure.
Because nothing in the statutory language of the UPA
bars a presumptive parent in an artificial insemination case from
attempting to rebut the presumption of parentage by proving that
he or she did not consent to the artificial insemination
procedure, I also address whether LC met her necessary burden of
proof. Keeping in mind that the UPA intended to make it
difficult to rebut a presumption of parentage, see Unif.
23
I agree with the Majority and note that the Legislature can provide
further guidance on establishing and rebutting the presumption of parentage in
situations where children are born by artificial insemination. Majority at
14.
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Parentage Act § 4 cmt. (1973), I conclude that LC did not prove,
by clear and convincing evidence, that she did not consent to the
artificial insemination procedure that led to the birth of the
child.
Here, the family court concluded that
[LC] did not meet her burden of proving by clear and
convincing evidence that she did not consent to [MG]
undergoing the artificial insemination procedure that
resulted in her pregnancy and the birth of the Child. [LC]
therefore has failed to rebut the presumption under HRS §
584-4(a)(1) that she is a legal parent of the Child.
I agree. The record demonstrates that LC did not provide clear
and convincing evidence that she did not consent to the
artificial insemination procedure. In fact, her actions before
and after MG’s pregnancy indicate that she wished to be the
child’s parent.
For instance, text messages between LC and MG while LC
was deployed demonstrate that LC acknowledged and assented to the
pregnancy.24 When MG texted LC saying she was taking fertility
24
While the parties did not, at any time, assert the spousal privilege or
raise any argument regarding confidential marital communications at trial or
on appeal, the Majority notes that Hawai#i Rules of Evidence (HRE) Rule
505(b)(2) might prevent private communications like text messages from being
used as evidence when one party refuses to disclose them. Majority at 15-17.
Of course, in this case, both parties submitted evidence of their
communications and texts, so they waived their right to keep these
communications confidential.
Moreover, if a party chooses to exercise the confidential marital
communication privilege, its non-disclosure in a proceeding to disestablish
parentage would make it more difficult for a spouse to prove non-consent to an
artificial insemination procedure. This is consistent with the purposes of
HRS § 584-4(b), and in my view, not a convincing reason to bar evidence of
non-consent to an artificial insemination procedure to rebut a presumption of
parentage.
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pills and ordering vials, LC responded “K @ pills.” When MG
later texted LC that she was pregnant, LC responded that she
wanted to “rub [MG’s] tummy and feel our baby,” and was excited
to tell her family.
Furthermore, LC took additional actions that evidenced
an intent to be the mother of the child –- she sent a loving note
and poem to MG noting that while MG’s body and moods would
change, “[LC and the baby] will love [her] through it all.” When
LC returned home from deployment, she accompanied MG to an
ultrasound appointment and a lamaze class.
While LC claimed that she explicitly withdrew her
consent to the IUI procedure in a fax to Shady Grove sent on
January 1, 2014 (before MG conceived the child), the clinic
received the fax on December 9, 2015 (after MG gave birth to the
child). The family court found no credible evidence that the
clinic or MG received the letter before the child was born.
Finally, LC’s attempts to distinguish her case from
other cases concluding that the spouse failed to rebut the
presumption of consent to artificial insemination are unavailing.
In fact, an examination of the evidence in this case leads me to
conclude that the cases LC attempts to distinguish are
indistinguishable. See Wendy G-M., 985 N.Y.S.2d at 847
(concluding that the same-sex spouse of a mother who gave birth
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to a child was the legal parent because the record demonstrated,
inter alia, that the spouse attended pre-birth classes,
participated in baby showers, and celebrated the impending birth
on social media); Laura WW., 856 N.Y.S.2d at 263 (determining
that the husband failed to rebut the presumption of consent
because he was aware that his wife was preparing for an
artificial insemination procedure and “proffered no evidence that
he took any steps before the [artificial insemination] was
performed to demonstrate that he was not willing to be the
child’s father”); K.S., 440 A.2d at 66-67 (concluding that the
husband consented to the artificial insemination procedure even
when his wife became pregnant fifteen months after the husband’s
initial consent because he accompanied her to the artificial
insemination procedure).
Here, LC attended pre-birth classes, was aware that MG
was taking steps to become pregnant by artificial insemination,
did not proffer any credible evidence that she took any steps to
withdraw her consent to the artificial insemination procedure,
and was so excited when MG told her of the pregnancy that she
couldn’t wait to tell her family.
Therefore, on this record, I conclude that LC did not
prove by clear and convincing evidence that she did not consent
to MG’s artificial insemination procedure that led to the birth
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of the child. The family court did not err in concluding the
same.
IV. CONCLUSION
In 2013, the Legislature adopted the MEA to recognize
marriages between individuals of the same sex, and granted those
couples the same rights, benefits, and protections enjoyed by
heterosexual married couples. With those rights came
responsibilities. See HRS § 572-1.8. Perhaps the greatest of
these are the responsibilities of parentage. A man is presumed
to be the legal parent of a child if he and the child’s natural
mother are married. HRS § 584-4(a)(1). We now hold that this
presumption of parentage applies equally to a woman who is
married to the child’s natural mother.
Accordingly, the family court did not err in concluding
that the UPA’s marital presumption of parentage applies to LC.
LC also failed to rebut the presumption of parentage. Therefore,
the family court’s November 1, 2016 Decision and Order denying
LC’s request for disestablishment of legal parentage is affirmed.
Rebecca A. Copeland for /s/ Mark E. Recktenwald
petitioner-appellant LC
/s/ Paula A. Nakayama
Peter C. Renn, pro hac vice,
and Christopher D. Thomas for /s/ Sabrina S. McKenna
respondent-appellee MG
/s/ Richard W. Pollack
Clyde J. Wadsworth for amicus
curiae State of Hawai#i /s/ Michael D. Wilson
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