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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: _____________
3 Filing Date: July 11, 2022
4 No. A-1-CA-37878
5 MAILE SOON,
6 Petitioner-Appellee,
7 v.
8 JEANNINE KAMMANN,
9 Respondent-Appellant.
10 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
11 Gerard J. Lavelle, District Judge
12 Thomas C. Montoya
13 Albuquerque, NM
14 for Appellee
15 ACLU of NM Foundation
16 Elinor Rushforth, Staff Attorney
17 Maureen A. Sanders, Cooperating Attorney
18 Albuquerque, NM
19 for Appellant
1 OPINION
2 DUFFY, Judge.
3 {1} As part of their divorce proceedings, Maile Soon and Jeannine Kammann
4 engaged in a protracted dispute over Kammann’s parentage of twin children
5 conceived via artificial insemination and delivered by Soon during the parties’
6 marriage. Soon challenged Kammann’s standing to adjudicate parentage under the
7 New Mexico Uniform Parentage Act (NMUPA), NMSA 1978, §§ 40-11A-101 to -
8 903 (2009, as amended through 2021), because Kammann was not biologically or
9 genetically related to the children. Soon also argued that Kammann did not consent
10 to Soon’s insemination procedure as required to establish parentage under the
11 NMUPA’s assisted reproduction provisions. The district court ruled in favor of Soon
12 and adjudicated Kammann not to be a parent of the children.
13 {2} We address two questions presented by Kammann’s appeal: (1) whether
14 undisputed evidence that Kammann shares no genetic relationship with the children
15 is sufficient to rebut the statutory presumption of parentage that arises when children
16 are born during the marriage; and (2) whether the statutory requirements to establish
17 parentage by consent to assisted reproduction limit the evidence a district court may
18 consider to only those written records signed for the specific procedure that resulted
19 in the pregnancy. We conclude that the answer to both questions is no and reverse.
1 BACKGROUND
2 {3} Soon and Kammann were married in September 2015. They shared a mutual
3 desire to have children and sought to conceive a child through artificial insemination.
4 Beginning approximately one month before their marriage, Soon underwent the first
5 of several artificial insemination procedures. She successfully conceived twins in
6 the summer of 2016. The couple began having troubles in their relationship, and
7 Soon moved out of their shared home in November 2016. While still pregnant, Soon
8 filed a petition for divorce on January 12, 2017, along with a motion for a referral to
9 mediation for custody, visitation, and child support.
10 {4} Soon gave birth on March 3, 2017. Over the next eighteen months, Soon and
11 Kammann fought a contentious custody battle over the children. Soon initially
12 conceded that Kammann was a parent of the children, and the two enacted a child
13 support and visitation plan. They adhered to the plan for a time, and Kammann paid
14 Soon biweekly child support until at least September 2018. 1
15 {5} Six months after initiating the proceedings, Soon hired a new attorney who
16 filed a motion to dismiss Kammann’s custody claim for lack of standing. As relevant
17 to this appeal, Soon argued that Kammann lacked standing to adjudicate parentage
18 under the NMUPA. Soon acknowledged that Kammann was presumed to be a parent
The district court adjudicated Kammann not to be a parent of the children in
1
September 2018.
2
1 of the children because they were born during the parties’ marriage. See § 40-11A-
2 204(A) (establishing the presumption of parentage that arises from marriage).
3 Nevertheless, Soon argued that the marital presumption was conclusively rebutted
4 because Kammann had no genetic relation to the children.
5 {6} Kammann responded that the fact the children were born within the marriage
6 “in and of itself establishes her basis for standing as an interested party under the
7 Uniform Parentage Act.” She also maintained that she is a parent of the children
8 because she consented to the assisted reproduction under Section 40-11A-703
9 (stating that a person who “consents to assisted reproduction . . . with the intent to
10 be the parent of a child is a parent of the resulting child”). She concluded that these
11 facts establish that she “is not only an interested person, but is the presumed parent
12 by virtue of her legal marriage to [Soon], and has standing to ask for a determination
13 of parentage, custody and time-sharing” under New Mexico law.
14 {7} The district court conducted an hour-long evidentiary hearing on Soon’s
15 motion and found that Kammann did not gave birth to the children, was not the
16 genetic or biological mother of the children, and that the presumption of parentage
17 based upon the parties’ marriage had been rebutted. However, the court
18 acknowledged that there was an outstanding issue as to whether Kammann had
19 consented to the assisted reproduction and ordered that she would have thirty days
20 to file a counter-petition to establish parentage based on the NMUPA’s assisted
3
1 reproduction provisions. See §§ 40-11A-701 to -707. After Kammann did so, the
2 district court held another evidentiary hearing, during which the parties presented
3 witnesses and documentary evidence regarding their multiple attempts to conceive
4 via artificial insemination. The court delivered its decision on the record four weeks
5 later. Reasoning that Kammann “had to consent to the assisted reproduction that
6 resulted in the birth of the children” to establish parentage, the court focused on
7 whether Kammann had provided a record showing that she consented to the specific
8 insemination procedure that resulted in conception. The court noted that the parties
9 had attempted to conceive via artificial insemination several times and while “[t]here
10 was a general consent filed by the parties early on” and both parties had signed
11 documents in conjunction with several of the procedures, only Soon had signed the
12 form for the procedure that was ultimately successful. For that reason, the court
13 found that Kammann had not provided a signed record that complied with New
14 Mexico law and concluded she was not a parent of the children. Afterward,
15 Kammann filed a motion for visitation rights based on a theory of stepparent
16 visitation, which the court also denied.2 Kammann appeals.
In the same order, dated December 4, 2018, the district court also granted a
2
dissolution of marriage.
4
1 DISCUSSION
2 {8} Kammann challenges two aspects of the district court’s interpretation and
3 application of the NMUPA. First, she contends that the NMUPA contains specific
4 evidentiary and procedural requirements to rebut a presumption of parentage, and
5 the district court failed to follow them here. Second, she challenges the district
6 court’s interpretation of the consent to assisted reproduction requirements, arguing
7 the court took too narrow a view in requiring a document signed immediately before
8 the specific insemination that resulted in conception. Resolution of these issues
9 requires us to interpret the NMUPA.
10 {9} “Statutory interpretation is an issue of law, which we review de novo.”
11 Chatterjee v. King, 2012-NMSC-019, ¶ 11, 280 P.3d 283 (internal quotation marks
12 and citation omitted). When reviewing a statute, we seek to give effect to the
13 Legislature’s intent. Id. In determining legislative intent, “we look first to the plain
14 language of the statute, giving the words their ordinary meaning, unless the
15 Legislature indicates a different one was intended.” Id. (alteration, internal quotation
16 marks, and citation omitted). In addition to the statute’s plain language, we will
17 consider its history, background, and the broader statutory scheme within which the
18 language being interpreted rests. Id. ¶ 12. We do so to ensure a harmonious
19 interpretation of statutory language within a given act. Id.
5
1 I. The Marriage Presumption
2 {10} We turn first to Kammann’s argument that the district court erred in
3 concluding her presumed parentage had been rebutted. Kammann challenges the
4 district court’s ruling on evidentiary, procedural, and constitutional grounds. She
5 argues that (1) Soon did not present admissible results of genetic testing as required
6 by statute to rebut the presumption; (2) by not requiring genetic testing results, the
7 district court bypassed important procedural aspects of the NMUPA that allow the
8 court to consider whether genetic testing is appropriate in the first place; and (3) the
9 genetic testing provision, as applied, violates the Fourteenth Amendment’s Equal
10 Protection Clause. We agree that evidentiary and procedural errors require reversal
11 in this case. Consequently, we do not reach the constitutional question. See Allen v.
12 LeMaster, 2012-NMSC-001, ¶ 28, 267 P.3d 806 (noting that “[i]t is an enduring
13 principle of constitutional jurisprudence that courts will avoid deciding
14 constitutional questions unless required to do so” and that “courts exercise judicial
15 restraint by deciding cases on the narrowest possible grounds” (internal quotation
16 marks and citation omitted)); see also Lovelace Med. Ctr. v. Mendez, 1991-NMSC-
17 002, ¶ 12, 111 N.M. 336, 805 P.2d 603 (“It is, of course, a well-established principle
18 of statutory construction that statutes should be construed, if possible, to avoid
19 constitutional questions.”).
6
1 {11} Under the NMUPA, a presumption of paternity arises when a child is born
2 during a marriage. Section 40-11A-204(A)(1). While the NMUPA uses the term
3 “paternity,” the Legislature made clear that “[p]rovisions of the [NMUPA] relating
4 to determination of paternity apply to determinations of maternity insofar as
5 possible.” Section 40-11A-106; see Chatterjee, 2012-NMSC-019, ¶ 20 (discussing
6 the gender neutrality provision in the prior version of the NMUPA and concluding
7 the presumptions of paternity apply to women). Accordingly, married persons of any
8 gender may rely on the marriage presumption to establish standing and a
9 presumption of parentage. See § 40-11A-602 (stating that a person whose parentage
10 of the child is to be adjudicated has standing to maintain a proceeding under the
11 NMUPA); Griego v. Oliver, 2014-NMSC-003, ¶ 6, 316 P.3d 865 (recognizing that
12 “the State of New Mexico is constitutionally required to allow same-gender couples
13 to marry”); see also Chatterjee, 2012-NMSC-019, ¶ 9 (construing the prior version
14 of the NMUPA to afford standing to “[a]ny person who is able to establish presumed
15 natural parenthood”).
16 {12} An unrebutted presumption of parentage conclusively establishes the parent-
17 child relationship. See § 40-11A-201(B)(1). In contested cases, a presumption may
18 only be rebutted by an adjudication pursuant to Article 6 of the NMUPA. Section
19 40-11A-204(B); see also § 40-11A-601 (authorizing civil proceedings in the district
20 court to adjudicate the parentage of a child). The Legislature specified rules for the
7
1 adjudication that state, in relevant part, “[t]he paternity of a child having a
2 presumed . . . father may be disproved only by admissible results of genetic testing
3 excluding that man as the father of the child or identifying another man as the father
4 of the child.” Section 40-11A-631(A) (emphasis added). Read together and in a
5 gender-neutral fashion, Sections 40-11A-204 and -631(A) establish that Kammann
6 is presumed to be a parent of the children by virtue of their birth during her marriage
7 to Soon.3 This presumption can only be rebutted by the admission of genetic testing
8 results showing that Kammann has no genetic relation to the children.
9 {13} This brings us to the crux of the parties’ dispute: whether the district court
10 erred in concluding that the marriage presumption had been rebutted when neither
11 party sought or offered “admissible results of genetic testing.” Soon relied instead
12 on Kammann’s admission under oath that she is not the genetic or biological parent
13 of the children. We must therefore determine whether an admission alone can satisfy
14 the evidentiary requirement in Section 40-11A-631(A).
15 {14} Soon argued below that genetic testing should only be required if there is some
16 doubt as to whether Kammann was the genetic parent. She maintains on appeal that
17 “any presumption of parentage due to marriage is indisputably rebutted by evidence
18 that a parent cannot be a biological parent of the child at issue, and by the fact of
Throughout the remainder of this opinion, we use the term “presumed parent”
3
in place of “presumed father.”
8
1 artificial insemination.” She concludes that because there is no dispute that
2 Kammann is not the genetic parent of the children, Kammann’s admission was
3 sufficient to rebut the marriage presumption as a matter of law.
4 {15} Kammann argues that the evidentiary requirement to rebut the marriage
5 presumption is governed by statute and an admission does not satisfy the statute’s
6 requirement. See § 40-11A-631. Kammann notes that genetics are not necessarily
7 dispositive of parentage under the NMUPA. Under some circumstances, the district
8 court may forgo genetic testing and adjudicate the presumed parent to be the parent
9 of the child. See § 40-11A-608. That procedure, Kammann argues, is triggered by a
10 genetic testing request and a strict interpretation of the evidentiary requirement is
11 necessary to protect the rights of the presumptive parent. Based on the NMUPA’s
12 plain language, history, and purpose, we agree that the evidentiary requirement must
13 be applied strictly.
14 {16} We look first to the plain language of the statute as the primary indicator of
15 legislative intent. Chatterjee, 2012-NMSC-019, ¶ 11. In Section 40-11A-631, the
16 Legislature stated that “[t]he district court shall apply the following rules to
17 adjudicate the [parentage] of a child.” (Emphasis added.) When a child has a
18 presumed parent, parentage “may be disproved only by admissible results of genetic
19 testing.” Section 40-11A-631(A) (emphasis added). The Legislature’s use of the
20 word “only” is restrictive, and a straightforward reading of the evidentiary
9
1 requirement in Section 40-11A-631 is that genetic testing is the sole type of evidence
2 to be considered when disproving a parentage presumption.
3 {17} This view finds support in the history of the NMUPA, in how Section 40-
4 11A-631 functions in conjunction with other provisions in the NMUPA, and in the
5 overarching public policy goals that animate the NMUPA. Under the prior version
6 of the NMUPA, our Supreme Court recognized in Chatterjee that biology does not
7 automatically rebut a presumption of parentage. See 2012-NMSC-019, ¶¶ 38-47. In
8 that case, a woman sought joint custody of a child adopted by her partner during the
9 course of their long-term domestic relationship. Id. ¶ 1. She alleged that she was a
10 presumed natural parent of the child under the NMUPA and filed a petition to
11 establish parentage in the district court. See id. ¶ 2. As an issue of first impression,
12 our Supreme Court held that the presumptions of paternity set forth in NMSA 1978,
13 Section 40-11-5 (1997, repealed 2009) operated in a gender-neutral fashion such that
14 a woman could rely on the paternity presumptions to establish standing and
15 parentage under the NMUPA. See Chatterjee, 2012-NMSC-019, ¶¶ 9, 48-49.
16 {18} In an in-depth analysis that bears on our decision here, the Court considered
17 the statutory mechanism for rebutting a presumption of parentage. Id. ¶¶ 38-47. The
18 Court evaluated whether it was appropriate to rebut a presumption of parentage with
19 evidence that the petitioner was not the biological parent of the child. Id. The Court
20 observed that the presumptions arose from a person’s conduct, not a biological
10
1 connection, id. ¶ 15, and rejected the notion that a presumed parent’s admission that
2 he or she was not the child’s biological parent conclusively rebuts the presumption.
3 See id. ¶¶ 41-47 (stating that district courts should not determine parentage solely on
4 the basis of a biological relationship); see also id. ¶ 44 (noting that the Colorado
5 Parentage Act “does not elevate the presumption of biology over the presumption of
6 legitimacy and nothing in the statutory provisions provides that an admission by a
7 man that he is not the child’s biological father conclusively rebuts a parentage
8 presumption” (text only) (citation omitted)). 4
4
Soon’s brief cites to this Court’s opinion in Lane v. Lane, 1996-NMCA-023,
¶ 10, 121 N.M. 414, 912 P.2d 290, which stated that the marital presumption “was
indisputably rebutted by evidence of [the h]usband’s sterility and the [fact that the
children were conceived via] artificial insemination.” Lane was decided under the
prior version of the Act and before our Supreme Court’s opinion in Chatterjee,
which made clear that whether biology should be allowed to rebut a presumption of
parenthood is a fact-bound inquiry for the district court. Consequently, any
suggestion in Lane that the marriage presumption is “indisputably” rebutted by
evidence of the lack of a biological relationship must yield to Chatterjee’s holding
that there is no bright-line rule. Further, there is no indication in Lane that either the
district court or this Court considered whether that case was “an appropriate action”
in which to rebut the marriage presumption, and therefore Lane offers no guidance
on that question as a counterpoint to the analysis in Chatterjee. Cf. Tran v. Bennett,
2018-NMSC-009, ¶ 22, 411 P.3d 345 (holding that it was appropriate to rebut the
presumption of paternity with biological evidence under the facts presented because
doing so would not deprive the child of having the support of two parents or sever a
close emotional bond between the child and a presumed father); Fernandez v.
Farmers Ins. Co. of Ariz., 1993-NMSC-035, ¶ 15, 115 N.M. 622, 857 P.2d 22 (“The
general rule is that cases are not authority for propositions not considered.” (internal
quotation marks and citation omitted)).
11
1 {19} The Court noted that the Legislature had “limited the circumstances for
2 rebuttal of the parentage presumption” by directing that a presumption should only
3 be rebutted “in an appropriate action.” Chatterjee, 2012-NMSC-019, ¶¶ 41-42.
4 However, because the Legislature had not defined what constitutes an “appropriate
5 action,” the Court adopted a variety of factors from other jurisdictions with similar
6 enactments to guide that determination. See id. ¶¶ 42, 47. These included whether
7 there was a competing parentage claim by a third party, whether denying the
8 presumed parent’s claim would leave the child without a second parent, and whether
9 the presumed parent had “actively participated in causing the children to be
10 conceived with the understanding that she would raise the children as her own
11 together with the birth mother.” Id. ¶¶ 42-47 (internal quotation marks and citation
12 omitted). The Court emphasized the importance of considering the child’s best
13 interests, id. ¶¶ 43-47, and stated unequivocally that district courts should not
14 assume a genetic parentage determination is in the best interest of the child. See
15 id. ¶ 46 (noting that determining parentage solely on the basis of a biological
16 relationship may be detrimental to the child’s welfare by compromising the
17 continuity of an established relationship).
18 {20} The NMUPA was amended in 2009 and now contains express guidance on
19 when and how genetics factor into parentage adjudications. The NMUPA sets forth
20 the general rule that a person excluded as the parent by genetic testing would
12
1 normally be adjudicated not to be the parent of the child. See § 40-11A-631(D). But
2 the Legislature carved out specific exceptions for adjudications involving a
3 presumed parent. See § 40-11A-608. When a child has a presumed parent, parentage
4 “may be disproved only by admissible results of genetic testing.” Section 40-11A-
5 631(A) (emphases added). Importantly, the results of genetic testing are not
6 admissible to adjudicate parentage unless performed with the consent of both parties
7 or pursuant to a court order. See § 40-11A-621(C). Under the latter scenario, a party
8 may file a motion to compel genetic testing, but the Legislature expressly provided
9 that the district court may deny the motion and adjudicate the presumed parent to be
10 the parent of the child. See § 40-11A-608(A). That course of action is authorized by
11 statute if the district court determines by clear and convincing evidence that (1) the
12 conduct of the mother or the presumed parent estops that party from denying
13 parentage; and (2) it would be inequitable to disprove the presumed parent’s
14 relationship with the child. See § 40-11A-608(A), (D). 5 The district court must also
Soon briefly mentions that Kammann did not preserve an argument that
5
Section 40-11A-608 should apply in this case. This is true insofar as Kammann did
not argue below that Section 40-11A-608 applies, but we do not view this as a failure
of preservation. Rule 12-321(A) NMRA requires that issues must be preserved for
our review. The issue presented here, whether the district court erred in concluding
that the marital presumption had been rebutted in the proceedings below, was
unquestionably preserved. Kammann’s briefing on Section 40-11A-608 is merely
argument directed to that issue; that is, Kammann does not appear to rely on Section
40-11A-608 in her briefing for any purpose other than to demonstrate the
Legislature’s intent that “under some circumstances, application of the Genetic-
Testing Provision might be unfair.” Soon has not provided us with any authority
13
1 consider the best interest of the child based on a nonexhaustive list of nine factors.
2 See § 40-11A-608(B). Taken together, these provisions embody our Legislature’s
3 continued recognition that genetics do not conclusively rebut a presumption of
4 parentage. See Chatterjee, 2012-NMSC-019, ¶¶ 35-36 (noting that children may
5 form parent-child bonds with persons other than their genetic parents and that New
6 Mexico courts have awarded custody to nongenetic parents in some circumstances).
7 {21} Allowing district courts to uphold a parent-child relationship even when a
8 genetic relationship is absent is in keeping with the dual public policy goals that
9 animate the NMUPA: the state’s “strong interest in ensuring that a child will be cared
10 for, financially and otherwise, by two parents,” and “the interest that children have
demonstrating that a party cannot provide additional legal authority and argument
on appeal in support of an issue preserved below.
We also agree with Kammann that the procedural posture in this case deprived
her of an opportunity to raise Section 40-11A-608 before the district court ruled.
Soon raised the issue of Kammann’s “paternity” in a motion to dismiss for lack of
standing. Standing under the Act is standing to adjudicate parentage. See § 40-11A-
602; Chatterjee, 2012-NMSC-019, ¶ 49. The undisputed fact that the children were
born during the parties’ marriage was sufficient to establish Kammann’s standing to
maintain a proceeding to adjudicate parentage. See § 40-11A-602; § 40-11A-
204(A)(1). To the extent Soon’s motion also included a substantive argument on the
merits of Kammann’s parentage, and to the extent the evidentiary hearing on Soon’s
motion to dismiss for lack of standing functioned as a parentage adjudication, the
ultimate ruling on the merits of Kammann’s presumed parentage bypassed several
procedural and evidentiary provisions required by Article 6. Soon neither presented
admissible results of genetic testing nor filed a motion seeking to compel genetic
testing to rebut Kammann’s presumed parentage. Given this, we agree with
Kammann that the improper procedure prevented her from opposing a motion for
genetic testing by invoking the equitable protections of Section 40-11A-608.
14
1 in their own support.” Id. ¶¶ 32-33. As to the state’s interest, the Chatterjee Court
2 observed that “parents have an obligation to support their children in any possible
3 combination and permutation of marriage, method for conception of the child, and
4 arrangements that intended parents make to have children,” and when that care is
5 lacking, the responsibility of caring for the child falls to the state. Id. ¶¶ 31-32
6 (omission, internal quotation marks, and citation omitted). As to the child’s interest,
7 the Court observed that a “[c]hild’s need for love and support is no less critical
8 simply because [his or] her second parent also happens to be a woman.” Id. ¶ 34.
9 Collectively, Sections 40-11A-631(A) and -608 give force to these overarching
10 goals by allowing district courts to decide in each case whether the genetic
11 relationship, or lack thereof, should be allowed to rebut a presumption of parentage.
12 {22} The language, history, and purpose of the NMUPA lead us to conclude that
13 the Legislature intended the evidentiary requirement for rebutting a parentage
14 presumption to be applied strictly. Consequently, a parentage presumption cannot
15 be rebutted in the absence of admissible results of genetic testing. Were it otherwise,
16 parties could circumvent the district court’s authority to deny a motion for genetic
17 testing by eliciting an admission from the presumed parent that they have no genetic
18 relationship with the child. In effect, if admissions were allowed to rebut the
19 presumption in lieu of genetic testing results, then in any case where an admission
20 is obtained, the lack of a genetic relationship would conclusively rebut a parentage
15
1 presumption, regardless of whether doing so served the best interests of the child.
2 This is contrary to the intent expressed in the statutory framework and would
3 undermine the fundamental considerations that underlie a parentage determination.
4 Therefore, in line with our Supreme Court’s reasoning in Chatterjee, we hold that a
5 presumed parent’s admission that they are not the genetic parent of the child is
6 insufficient to rebut a parentage presumption. See 2012-NMSC-019, ¶¶ 43-47.
7 {23} In this case, because neither party sought or presented genetic testing results,
8 we reverse the district court’s determination that the marriage presumption has been
9 rebutted and remand for further proceedings.
10 II. Assisted Reproduction Provisions
11 {24} Kammann next argues that she produced sufficient evidence to establish
12 parentage under Sections 40-11A-201(B)(5) and -704, which provide that the parent-
13 child relationship is established if Kammann consented to the assisted reproduction
14 in a signed record. Kammann presented a variety of documents relating to multiple
15 artificial insemination procedures beginning in August 2015. 6 The district court
6
On August 18, 2015, Soon and Kammann both signed a form entitled
“General Policy Statement and Consent.” That same day, Soon signed a form
entitled, “Consent for Artificial Insemination With Donor Sperm.” Kammann did
not sign that form. On November 30, 2015, the parties signed a form laying out the
risks and complications that arise in multiple-birth pregnancies.
In addition to these forms, the record contains four documents chronicling
Soon’s artificial insemination procedures. The first three are entitled, “Sperm Wash
Report,” and include a patient attestation which states, “I (we) attest that I (we) give
[consent] and permission for this processed sperm specimen as identified by me (us)
16
1 found that Kammann had not produced a signed consent specifically for the July
2 2016 procedure that resulted in Soon’s pregnancy. For that reason, the district court
3 concluded Kammann had failed to produce a signed record that complied with the
4 requirements of the NMUPA, had failed to prove she consented to assisted
5 reproduction, and was a not a parent of the children. On appeal, Kammann maintains
6 that her evidence—a signed consent for Soon’s August 2015 insemination procedure
7 and three other signed forms related to later procedures—was sufficient to satisfy
8 the statutory requirement. While Kammann frames the matter as a question of
9 sufficiency of the evidence, the issue presented requires us to determine the scope
10 of evidence a district court may consider under the NMUPA’s consent requirements.
11 {25} We begin with the statutory provisions that govern parentage by consent to
12 assisted reproduction. The NMUPA states in Section 40-11A-201(B)(5) that the
13 parent-child relationship is established by “the [person’s] having consented to
14 assisted reproduction by a woman pursuant to Article 7 of the [NMUPA] that
15 resulted in the birth of the child.” In Article 7, the NMUPA sets forth the
16 requirements to establish consent. It states, “The intended parent or parents shall
to be utilized for the purpose of insemination for procreation.” The reports are dated
September 30, 2015, October 28, 2015, and January 22, 2016. Each sperm wash
report is signed by Soon and Kammann. The final document is an “Andrology
Report,” which contains similar technical data to the sperm wash reports, but does
not include the patient attestation. The form is dated July 13, 2016, and is only signed
by Soon.
17
1 consent to the assisted reproduction in a record signed by them before the placement
2 of the eggs, sperm or embryos.” Section 40-11A-704(A); see also § 40-11A-703 (“A
3 person who . . . consents to assisted reproduction as provided in Section 7-704 of the
4 [NMUPA] with the intent to be the parent of a child is a parent of the resulting
5 child.”).7
6 {26} The district court construed these provisions to mean that the signed consent
7 must relate to the specific procedure that resulted in pregnancy and the eventual birth
8 of the children. That interpretation effectively requires intended parents to sign a
9 consent document before each placement in cases such as this, where the birth
10 mother undergoes multiple placements before becoming pregnant. For a number of
11 reasons, we view this restrictive construction as contrary to the Legislature’s intent.
12 {27} First, the plain language of the NMUPA is not so restrictive. The only time
13 requirement bearing on the written consent is that it must occur “before the
14 placement of the eggs, sperm or embryos.” Section 40-11A-704(A). The NMUPA
15 does not prohibit district courts from considering consent documents signed by the
16 parties at any point before the final placement, nor does it expressly require a new
17 consent before each placement when parties attempt assisted reproduction more than
7
Section 40-11A-703 does not require a consenting person to provide genetic
material or physically carry the pregnancy. This structure ensures that a nonbirthing
spouse has a way to establish parentage that does not rely on a genetic or biological
relationship to the child—a relationship that will be impossible to establish in
assisted reproduction involving a third-party donor.
18
1 once before they successfully conceive. Rather than focusing on the timing of the
2 parties’ consent, the NMUPA focuses on the parties’ intent—whether a person
3 consented to assisted reproduction with the intent to be the parent of the resulting
4 child. Section 40-11A-703. Given the absence of other restrictions, the NMUPA
5 does not prevent consideration of any documents signed by the parties before they
6 conceive via assisted reproduction, so long as those documents manifest their intent
7 to be a parent of the resulting child.
8 {28} The NMUPA also indicates that consent, once given, can remain effective for
9 an extended period of time. Section 40-11A-706(B) governs the withdrawal of
10 consent and implicitly recognizes that consent remains effective until it is
11 withdrawn. See § 40-11A-706(B) (“Unless otherwise agreed in a signed record, the
12 consent of a woman or man to assisted reproduction may be withdrawn by that
13 person in a signed record delivered to the other person at any time before placement
14 of eggs, sperm or embryos if the placement has not occurred within one year after
15 the consent.”). As a practical matter, if written consent were required before every
16 placement, then a person would only be able to withdraw consent in the brief window
17 of time between signing the consent form for the procedure and the ensuing
18 performance of the procedure. While it is not entirely outside the realm of possibility
19 that a person could change their mind in such a narrow window, the more reasonable
20 view is that parties can manifest their intent and consent to the entire course of
19
1 assisted reproduction—whatever it entails and however many attempts are
2 necessary—until the birthing mother conceives. See Lane, 1996-NMCA-023, ¶ 20
3 (observing that the writing requirement serves a “cautionary purpose” because
4 “[o]ne who pauses to sign a document can be expected to give more thought to the
5 consequences of consent than one who gives consent in a less formal setting”).8
6 {29} Finally, we cannot ignore the practical and public policy implications of
7 narrowly construing the consent provisions to require a signed document for the
8 specific procedure that resulted in the pregnancy and birth. Such a formalistic
9 requirement raises the possibility that a willing and intended parent may fail to
10 satisfy the legal requirements to establish parentage for want of a single document,
11 even if there is considerable written evidence to the contrary. What if, for example,
12 the intended parent was unable to attend the appointment or arrived late, after the
13 placement? What if the provider does not request a signature for that particular
14 procedure or misplaces the form? In those circumstances, even if there was written
15 consent to assisted reproduction in general, the intended parent would not be able to
16 produce the evidence necessary to establish parentage. On the other side of the coin,
17 this could also prevent a birth parent from establishing the other parent’s obligation
Soon contends that she did not desire Kammann to be the parent of the
8
children at the time she conceived the children in July 2016. While she points to her
own testimony as uncontradicted evidence that she had changed her mind, there is
no evidence in the record that she communicated a withdrawal of consent to
Kammann or her medical providers.
20
1 to help support the child. E.g., Chatterjee, 2012-NMSC-019, ¶ 62 (Bosson, J.,
2 specially concurring). Such a result is not only impractical, it is in conflict with
3 public policy underlying the NMUPA. Id. ¶¶ 32-33. As this Court observed when
4 construing a similar provision in the prior version of the NMUPA, “when [spouses]
5 both approve of . . . conceiving a child through artificial insemination and both wish
6 [the nonbirthing spouse] to be treated as the natural [parent], then the [s]tate should
7 honor that wish.” Lane, 1996-NMCA-023, ¶ 20.
8 {30} For all of these reasons, we see no justification for limiting proof of consent
9 to only those documents signed for the specific procedure that results in pregnancy.
10 As this Court observed in Lane, the requirement of a signed record serves an
11 evidentiary function, the purpose of which is to “avoid[] disputes regarding whether
12 consent was actually given.” Id. Like Lane, “[w]e fail to see how the date of the
13 writing affects the probative value of the writing as evidence of the consent.”
14 Id. ¶ 22. We reverse the district court’s contrary decision.
15 {31} On remand, the district court must consider whether the parties’ written
16 evidence establishes Kammann’s consent to assisted reproduction. Because the
17 Legislature has not prescribed the nature of the writing or any particular form of
18 words for the consent, and because the purposes of the statute have not changed, the
19 three factors articulated in Lane continue to provide a helpful framework for
20 evaluating whether a writing is satisfactory: “if the writing conveys in some manner
21
1 that (1) the [nonbirthing spouse] knows of the conception by artificial insemination,
2 (2) the [nonbirthing spouse] agrees to be treated as the lawful [parent] of the child
3 so conceived, and (3) the [birthing spouse] agrees that the [nonbirthing spouse] will
4 be treated as the lawful [parent] of the child.” Id. ¶ 21. While the district court’s oral
5 ruling indicates that at least one of the parties’ exhibits amounted to a general
6 consent early on, the court did not make a finding on this point, and this Court cannot
7 do so for the first time on appeal. See State v. Gonzales, 1999-NMCA-027, ¶ 9, 126
8 N.M. 742, 975 P.2d 355 (“It is a bedrock principle of appellate practice that appellate
9 courts do not decide the facts in a case”); see also Duke City Lumber Co. v. Terrel,
10 1975-NMSC-041, ¶ 5, 88 N.M. 299, 540 P.2d 229 (“[I]t is for the finder of the facts,
11 and not the appellate courts, to weigh conflicting evidence and decide where the
12 truth lies.”).
13 CONCLUSION
14 {32} For the foregoing reasons, the district court’s orders regarding Kammann’s
15 parentage are reversed and this matter is remanded for further proceedings consistent
16 with this opinion.
17 {33} IT IS SO ORDERED.
18 __________________________________
19 MEGAN P. DUFFY, Judge
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1 WE CONCUR:
2 _______________________________
3 J. MILES HANISEE, Chief Judge
4 _________________________________
5 GERALD E. BACA, Judge
23