“ Question 1(A)”
The dynamics of family structure in the United States have been changing, expanding and shifting to accommodate as many models as possible. The definition of a family today is very different from how it would have been defined a decade ago. The state of California is keeping pace. The State of California is considered one of the most liberal and accommodating states. Its family laws are a show for this.
In the circumstances of the present case, two gay couples agreed to have a child together. They choose to do so through a surrogate, Annabelle. The surrogate enters into an agreement with these couples relinquishing her rights as a parent. The official documents for the twins indicate that she is the mother. The contract between Annabelle and the four to be parents was entered into before the baby was born. This is acceptable under the California Assembly Bill 1217 which became effective on January 1st, 2013 as the law on surrogacy. The parties had agreed in writing, and the birth certificates do not change anything. The surrogate has no parentage claim.
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Mary gave her egg which, after fertilization was introduced into the womb of the surrogate. The Court in Johnson v Calvert, a 1993 case, the court held that the person who provides the egg for purposes of surrogacy is the natural mother of the child. In this case, Mary has parentage claim as the natural mother of the child.
California Bill 274 opens the possibility of a child having more than two parents. The law was inspired by the case of Re M.C which raised questions as to whether a child could have more than two parents. The case involved a lesbian couple who were married, and one of them had a baby with another man. All the three could rightly be considered to be parents of the child. The court stated that there was a need to have legislation to address such circumstances. The Bill, which is now law, recognizes that in a conventional family, the child has two parents, but in rear circumstances, children have more than two persons who are their parents in every way.
The Supreme Court in Troxel v Granville held that the three main duties of a parent are care, custody, and control. These are the basic responsibilities of parents under the Constitution. Both Robert and Arthur provided sperms. The clinic picked the sperm to fertilize the egg at random and therefore there is no way of knowing for sure who the biological father is. The two couples have demonstrated that they are all parents to the twins through their actions. The parents spend at least five days a week with all their parents, and for three nights a week they stay with the Millers and for four nights with their mothers.
“ Question 1(B)”
Before assessing the individual contracts, there are certain general conditions which must have been fulfilled for it to be considered valid. Beyond the offer, acceptance, consideration requirement, the parties to the contract must have had the capacity to contract and that the parties consented to the formation of the contract. Such consent must not have been obtained fraudulently it must be free and informed consent. The contract must be for a legal purpose.
The first contract in the set of fact provided is the contract which formed the surrogacy relationship. The contract spelled out that Annabelle was only a surrogate and that Arthur and Robert would pay the medical expenses plus an additional $14,000 once the baby is bone and Anna gives up her parental rights. This contract is supposed to be a gestational surrogacy contract.
The California Family Code provides the prerequisites of such a contract. For the contract to be valid, parties must be represented by different attorneys, the contract must be executed and the signatures notarized. The code also requires that certain information is within the contract which appears to be missing in the present case. Embryo transfer needs to occur once the contract has been properly executed. This particular contract is invalid for failure to comply with the mandatory requirements of the law.
The second contract relates to children living arrangements, insurance cover, vocation and divorce. In a case of divorce, no one should ask for child support. The part which provides for divorce seems to be problematic. In a divorce where children are involved, the court considers what would be in the best interest of the children. Making such a provision can be a violation of the rights of the children as well as an attempt to exclude a court’s adjudicative authority.
Lastly, the prenuptial agreement falls short of the prerequisites established under the Uniform Premarital Agreement as amended in 2002. The agreement must allow seven days between the time when it was received and the time when it was signed. A counter-offer by Robert created a new contract altogether. The original contract also does not respect this requirement. Before signing the contract, the party must be informed about the property of the other, and each is to be represented by an attorney who does not happen in the present case. All the three contracts present validity questions. The contracts fail to match up to the standards provided for in law.
“ Question 1(C)”
The California Penal Code prohibits abuse of children, whether physical, emotional or sexual. It places a mandatory reporting responsibility upon such persons as medics and teachers to child protective services. The twins have been abused by one of their parents without good reason. In action for abuse of children, the court looks into placing the children into all or one of the other parents. In determining issues of custody and child support, the court is guided by the best interests of the child. The health, safety, and welfare of the child are matters of primary concern for the court.
“ Question 2(A)”
The fertility clinic debt was incurred by both parties for their benefit. Both of them wanted a child and jointly consulted a fertility clinic where Khloe received several treatments before the embryo was ready for implantation. In the circumstances, both Khloe and her husband are responsible for the joint debt they incurred even though they have filed for divorce.
“ Question 2(B)”
The different states that Khloe and Scott have traversed once they expressed intention for divorce are numerous. The different states have different standards applied in adjudication matters to do with divorce. Some of the considerations that could be used to determine the best state for divorce include the costs of the process and the time-lines, the kind of fees payable, how long are the waiting periods, and lastly the requirement of residency for a certain amount of time before filling.
The divorce petition can be filled either of the states that Khloe or Scott has lived in. The first option is in Illinois where the couple lived for ten years. However, the couple is no longer living in Illinois. The residency requirement for Iowa is one year so she cannot qualify to institute proceedings there. In California, the residency requirement is six months, which her husband satisfies. Though she has satisfied the six months residency requirement in Virginia, before she files, she must have the intention of living in Virginia permanently.
The best jurisdiction to file for divorce is in California where Scott has lived for more than six months. The divorce must be filled in the County where Scott has lived for more than three months. In California, the no-fault divorce is acceptable. If the couple can no longer live together, the law allows for divorce in such a case of irreconcilable differences. The divorce petition is finalized within six months.
“ Question 2(C)”
The intended parents of the child were the Shepherds. The contract was predicated on certain fundamental conditions, that is, that the gamete donors were to be the intended parents. In this case, the legal mother of the child ought to be Khloe once the baby is born according to the Illinois Gestational Surrogacy Act provisions. In the current situation, the female gamete donor did not consent to this arrangement and as such had not relinquished her parentage obligations to the shepherds. In the circumstances of the case, Khloe remains the legal mother of the child until it is decided otherwise by a court of law.
“ Question 2(D)”
Khloe can sue the surrogate for breach of contract for failure to abort the baby once it was found to have chromosomal defects. This was a fundamental aspect of the contract to which the surrogate agreed to in the first place. She relinquished her right to make a decision once she signed the contract. Sara refuses the request of Khloe to terminate the pregnancy because she does not believe in abortion. This constitutes a breach of contract and Khloe has good chances of success. The contract is voidable because of the negligence of the fertility clinic. Neither of the Shepherds has opted out of the contract, and I believe it becomes binding on them in which case it becomes binding on the parties.
