Opinion
2023 CW 1034
04-30-2024
JONATHAN FORET v. JASON SERRANO
Charles G. Blaize, Jr. Frederic C. Fondren Yazan Yaz Rantisi Bret L. Bajon Baton Rouge, LA and Danna E. Schwab Patricia Reeves Floyd Houma, LA Counsel for Plaintiff/Respondent Jonathan Foret Jonathan M. Rhodes New Orleans, LA Counsel for Defendant/Relator Jason Serrano
On Supervisory Review from the Thirty-Second judicial District Court In and for the Parish of Terrebonne State of Louisiana Docket Number 195,388 Honorable David W. Arceneaux, Judge Presiding
Charles G. Blaize, Jr. Frederic C. Fondren Yazan "Yaz" Rantisi Bret L. Bajon Baton Rouge, LA and Danna E. Schwab Patricia Reeves Floyd Houma, LA Counsel for Plaintiff/Respondent Jonathan Foret
Jonathan M. Rhodes New Orleans, LA Counsel for Defendant/Relator Jason Serrano
BEFORE: GUIDRY, C.J., CHUTZ, AND LANIER, JJ.
GUIDRY, C.J.
A same-sex spouse appeals a district court judgment decreeing him not to be the legal parent of the other spouse's biological child born during the marriage. As explained herein, we convert the instant appeal to an application for supervisory writs. Additionally, we find the presumption provided in La. C.C. art. 185 inapplicable, as there was no childbearing spouse in the parties' marriage, and therefore deny the writ.
FACTUAL AND PROCEDURAL HISTORY
Jonathan Foret married Jason Serrano in January 2021. On March 3, 2021, a gestational carrier (surrogate) gave birth to D.E.F., the biological child of Foret, in Texas. In November 2022, Foret asked Serrano to move out of the marital home, and the next month, Foret filed a petition for divorce. In response, Serrano filed a rule to establish custody, seeking joint custody of D.E.F. Following a hearing on the rule, during which only Serrano testified, the trial court decreed that Serrano is not a parent of the minor child. It is from this judgment, decreeing Serrano not to be a parent of D.E.F., that Serrano now seeks review.
As provided by Louisiana law, a gestational carrier is "a woman who agrees to engage in a process by which she attempts to carry and give birth to a child born as a result of an in utero transfer of a human embryo to which she makes no genetic contribution." La. R.S. 9:2718.1(4). This is compared to a genetic gestational carrier, who is a woman that "attempts to carry and give birth to a child using her own gametes and either the gametes of a person who intends to parent the child or donor gametes, when there is an agreement to relinquish the custody of and all rights and obligations to the child." La. R.S. 9:2718.1(3). The distinction in the terms is important because in order for a gestational carrier (surrogacy) contract executed in this or any other state to be valid and enforceable in this state, the contract must comply with the provisions of La. R.S. 9:2718-2720.15. See La. R.S. 9:2720(C). Louisiana Revised Statutes 9:2719 expressly states that contracts for a genetic gestational carrier are absolutely null.
The child was conceived through in vitro fertilization using a donor egg and Foret's sperm. The child's initials are used to protect his identity pursuant to Uniform Rules-Courts of Appeal, Rules 5-1 and 5-2.
Serrano later filed a second rule seeking spousal support and termination of the community regime.
In this case, parentage is a preliminary matter to be determined in the course of deciding the merits of Serrano's rule to establish custody. Therefore, the judgment before us is a non-appealable, interlocutory judgment. See La. C.C.P. arts. 1841 and 2083(A); Lamana v. LeBlanc. 558 So.2d 685, 688 (La.App. 1st Cir. 1990) (wherein the court found the determination that plaintiff was the biological father of the child was an interlocutory ruling as it did not grant the relief of visitation and support sought by the plaintiff) and Davis v. Davis. 97-260 (La.App. 3d Cir. 4/16/97), 693 So.2d 214 (wherein the court found that a ruling with respect to disavowal of paternity did not fall within the parameters of La. C.C.P. art. 3943). However, since the motion for appeal was filed within thirty days of the notice of judgment, and since this court may-for the sake of judicial efficiency and fairness-exercise its supervisory jurisdiction in its own discretion, we elect to convert the instant appeal to an application for supervisory writs of review. See Berthelot v. Hoppe, 21-0907, p. 5 (La.App. 1st Cir. 2/25/22), 2022 WL 576456, at *2.
DISCUSSION
In 2015, the United States Supreme Court legalized same-sex marriages nationally by declaring that the United States Constitution "does not permit [States] to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex." Obergefell v. Hodges, 576 U.S. 644, 680, 135 S.Ct. 2584, 2607, 192 L.Ed.2d 609 (2015). Herein, Serrano argues that failing to accord him the benefit of the presumption of paternity provided in Article 185, and thereby refusing to recognize him as the legal parent of D.E.F., is an unconstitutional denial of the "constellation of benefits" that Louisiana has linked to marriage. Notably, Serrano does not seek to have Article 185 declared unconstitutional. Rather, he argues that the article must be interpreted and applied in a way that complies with the mandate of Obergefell to constitutionally confer the same benefits of marriage equally to heterosexual and same-sex spouses. Legal questions and interpretation of statutes are reviewed by this court de novo. See Finn v. Strain, 22-0998, p. 8 (La.App. 1st Cir. 9/13/23), 375 So.3d 517, 522.
The Court in Obergefell explained that "while the States are in general free to vary the benefits they confer on all married couples, they have throughout our history made marriage the basis for an expanding list of governmental rights, benefits, and responsibilities." The Court then goes on to list several such governmental rights, benefits, and responsibilities, including adoption rights and child custody, support, and visitation rules, as some of the "constellation of benefits that the States have linked to marriage." Obergefell, 576 U.S. at 669-70,135 S.Ct. at 2601.
In his appellate brief, Serrano asserts seven assignments of error. However, all of his arguments basically relate to the contention he makes in his first assignment of error, which is that the trial court erred in ruling the presumption of paternity provided in Article 185 does not apply to children born during a same-sex marriage.
We note that Serrano does not challenge the constitutionality of Article 185, as it is the means by which he seeks to establish a right of parentage. Additionally, in order to properly confect a constitutional challenge, a party must raise the constitutional issue in the trial court by raising the unconstitutionality, and the grounds outlining the basis of the alleged unconstitutionality, in a pleading, which did not occur in this case. See State v. Hatton, 07-2377, p. 16 (La. 7/1/08), 985 So.2d 709, 720. As a proper challenge to the constitutionality of Article 185 was not raised below, the only issue we have before us is whether the presumption set forth in Article 185 applies in this case. See Boquet v. Boquet, 18-798, p. 3 (La.App. 3d Cir. 4/10/19), 269 So.3d 895, 898, writ denied, 19-0673 (La. 6/17/19), 274 So.3d 1261 and Rapides Parish Police Jury v. Catahoula Duck Club & Lodge L.L.C., 09-64, p. 5 (La.App. 3d Cir. 11/18/09), 24 So.3d 988, 991, writ denied, 09-2778 (La. 2/26/10), 28 So.3d 279.
The Presumption of Paternity and Public Policy
As relevantly stated in Article 185, "[t]he husband of the mother is presumed to be the father of a child born during the marriage." (Emphasis added.) The public policy behind presumed paternity statutes is to legitimize children. See George L. Blum, Presumption of Paternity Applied to Same-Sex Spouse, 60 A.L.R.7th Art. 6 § 2 (2021). The presumption of paternity is one of the strongest presumptions in the law as it supports the policy favoring marriage and legitimacyof children. Rousseve v. Jones, 97-1149, p. 7 n.7 (La. 12/2/97), 704 So.2d 229, 233 n.7. Presumptions of paternity are evidentiary presumptions not "conclusive presumptions" or "presumptions of fact." J.R. Trahan, Glossae on the New Law of Filiation, 67 La. L. Rev. 387, 399 n.14 (2007). A conclusive legal presumption is an irrebuttable rule of substantive law that cannot be controverted. On the other hand, unless the presumption is rebutted, an evidentiary presumption will serve as an inference that the law requires the trier of fact to draw if it finds the existence of a "predicate fact." See Keith B. Hall, Evidentiary Presumptions, 72 Tul. L. Rev. 1321, 1321-22(1998).
Legitimacy is generally defined as the "status of a person who is born within a lawful marriage." Black's Law Dictionary 984 (Bryan A. Gamer ed., 9th ed., West 2009).
A predicate fact is a "fact from which a presumption or inference arises" or a "fact necessary to the operation of an evidentiary rule." Black's Law Dictionary 670.
As written, a predicate fact central to the application of the presumption found in Article 185 is the existence of a "mother," as explained herein.
Equal Protection and the "Constellation of Benefits" of Marriage
Louisiana Civil Code article 184 states that "Maternity may be established by a preponderance of the evidence that the child was born of a particular woman, except as otherwise provided by law." (Emphasis added.) A comment following Article 184 further explains that the article "clarifies present law by explicitly establishing that the mother of a child is the woman who gives birth to the child." La. C.C. art. 184, cmt. (a). Likewise, it has been recognized that with the enactment of Article 184 in 2005, the Louisiana Civil Code, for the first time, contains language identifying the mother of a child as "the woman who gives birth to the child." Katherine Shaw Spaht, Who's Your Momma, Who Are Your Daddies? Louisiana's New Law of Filiation, 67 La. L. Rev. 307, 309 (2007) citing La. C.C. art. 184 cmt. (a) (2006). Thus, a "mother" in the context of Article 185 is the childbearing spouse, and the presumption of parentage for the non-childbearing spouse is not based on biology, but is based on the marriage contract in existence at the time of the child's birth. See Chaisson v. State, Department of Health and Hospitals through Registrar of Vital Records, 17-0642, p. 12 (La.App. 4th Cir. 3/7/18), 239 So.3d 1074, 1081, writ denied, 18-00540 (La. 5/25/18), 243 So.3d 567.
Comment (c) following the article identifies La. R.S. 9:121-133, La. R.S, 40:32, and La. R.S. 40:34(B)(1)(h)(v) and (B)(1)(j), which are statutes generally related to in vitro fertilization and surrogacy, as examples of such exceptions.
It is not the circumstance of a child being born to a spouse during the marriage that triggers the presumption of paternity or parentage. The presumption, rather, is triggered only when a spouse gives birth to a child during the marriage. Consequently, we cannot say that the Article 185 presumption, as applied herein, runs afoul of Serrano's right to equal protection. Indeed, no cases have been found wherein the wife in a heterosexual marriage claimed or was accorded a marital presumption of parentage of a child that the husband fathered during the marriage with a woman who was not his spouse. In other words, in a heterosexual marriage where a spouse does not give birth to the child, the presumption does not apply. On the other hand, there are cases wherein the Article 185 presumption was applied in the context of female same-sex marriages, because in such instances, the marriage involves a "childbearing spouse" to which the full import of Article 185 can apply. See Boquet v. Boquet, 18-798 (La.App. 3d Cir. 4/10/19), 269 So.3d 895, writ denied, 19-0673 (La. 6/17/19), 274 So.3d 1261 (wherein the court found the female spouse of the birth mother to be the parent of the child born during their marriage and further found her action to disavow the child prescribed) and Chaisson, 17-0642 at p. 6, 239 So.3d at 1078 (wherein the court upheld the action of the Registrar of Vital Records to amend a birth certificate to add the female spouse of the birth mother as a parent of the child born during the marriage).
In light of the presumption being applied in cases involving the marriages of female same-sex couples, "it makes more sense to refer to the presumption as the 'marital presumption of parentage' as opposed to the 'marital presumption of paternity.'" See Jessica Feinberg, After Marriage Equality: Dual Fatherhood for Married Male Same-Sex Couples, 54 U.C. Davis L. Rev. 1507, 1518n.56(2021).
There are no cases in which the Article 185 presumption has been applied to establish parentage in the absence of a childbearing spouse. Likewise, we have found no legal authority to support applying the presumption of Article 185 to establish parentage in instances where a child is born by means of a gestational carrier to a married couple, whether the couple is heterosexual, same-sex female, or same-sex male. Instead, under Louisiana law, parentage in cases involving a gestational carrier is established contractually, which of necessity would require a person to be a party to the contract wherein the parentage rights are conferred. See La. R.S. 9:2718.1(6) and 2720.2(B)(3).
Hence, a fair reading of the statute convinces us that the presumption contained in Article 185 does not apply in this case. Under the same terms and conditions as the marriage of the parties herein, Article 185 has not been applied to grant a marital presumption of parentage to either spouse when the child is born by means of a gestational carrier. Therefore, we must reject Serrano's assertion that the failure to grant him the presumption of legal parentage in this case denies him equal protection of the law or the same constellation of benefits accorded to other marriages.
Due Process
As additional support for his claim that the trial court unconstitutionally determined that the marital presumption of parentage contained in Article 185 does not apply to him, Serrano contends that the judgment violates his and the child's due process rights by failing to recognize their liberty interests in family integrity and association. Neither the record nor the law supports this contention.
A month prior to the hearing on the rule to establish custody, the trial court met with counsel, and after declaring the custody issue to be "a rather novel and complicated legal issue," the court advised the parties of the following to which counsel for the parties agreed:
[I]n connection with the custody issue we are going to concentrate on the legal issues dealing with custody reserving to the parties any rights to the child other than custody, for example visitation. So it depends on the outcome of the resolution of the legal issue. So the evidence may be a little limited on that day, but that is without prejudice and reserving to the parties the rights to discuss visitation or access to the child after the hearing and a resolution of the legal issues.
Later, at the hearing on the rule to establish custody, the trial court stated the hearing was limited to a determination of the rule, pursuant to which the court stated there were two possibilities - a finding that both parties had parental rights or a finding that Serrano does not have parental rights. The court then stated that "after that determination was made, there would be a determination of what would be the rights of the parties with regard to the care and control of the child, the possibilities being that there would be some kind of domiciliary arrangements, some kind of visitation arrangement with one by one or the other parties."
Following the hearing on the rule, the trial court determined that the only person entitled to parental rights is Foret. Therefore, in the subsequent judgment on the rule, which is the judgment before us, the trial court decreed that Serrano is not a parent of D.E.F. The court also decreed "that further proceedings in this matter regarding the care, custody and control of the minor child will be consistent with this finding." Hence, contrary to Serrano's contentions, the trial court did not find that Serrano was not entitled to any continued association with the child, nor did the trial court foreclose granting him some rights relative to the care, custody, and control of the minor child. Rather, as repeatedly acknowledged by the trial court, a definitive ruling expressly granting care, custody, and control of the minor awaits further proceedings.
Moreover, although patently ignored by Serrano in his arguments before this court, conferring Serrano the status of a parent is not the exclusive means by which his and the child's liberty interest in maintaining a close, personal relationship can be recognized and protected. There exist other means under Louisiana law whereby he can assert and secure his liberty interest in maintaining a relationship with D.E.F. Specifically, any non-parent who has a relationship with a biological parent and develops a relationship with the child must meet the same standard in establishing a basis for custody of the child. Cook v. Sullivan. 20-01471, p. 8 (La. 9/30/21), 330 So.3d 152, 158. While Louisiana has neither statutorily nor jurisprudentially recognized the in loco parentis, de facto parent, or psychological parent status in custody contests between a parent and non-parent, the current law in Louisiana under La. C.C. art. 133 nonetheless allows for an award of custody to a person other than a parent. See Cook. 20-01471 at p. 9, 330 So.3d at 158-59.
Article 133 provides:
If an award of joint custody or of sole custody to either parent would result in substantial harm to the child, the court shall award custody to another person with whom the child has been living in a wholesome and stable environment, or otherwise to any other person able to provide an adequate and stable environment.See also In re C.A.C., 17-0108 (La.App. 4th Cir. 11/2/17), 231 So.3d 58.
Accordingly, as the trial court expressly stated that its ruling was limited to the issue of parentage and that it was reserving for future proceedings the determination of custody, care, and visitation with the child, we reject the claim that the judgment violates Serrano's due process liberty interest of maintaining a relationship with the child.
Equitable Estoppel
The doctrine of equitable estoppel is defined as the effect of the voluntary conduct of a party whereby he is precluded from asserting rights against another who has justifiably relied upon such conduct and changed his position so that he will suffer injury if the former is allowed to repudiate the conduct. A party invoking the doctrine of equitable estoppel must prove the facts upon which the estoppel is based and must establish all three elements of estoppel: 1) a representation by action or word; 2) justifiable reliance on the representation; and 3) a detrimental change in one's position because of the reliance. It is well-settled that estoppel is not favored in Louisiana. It is also well-settled that a party having the means readily and conveniently available to determine the true facts, but who fails to do so cannot claim estoppel. In re Qurso, 05-0543, pp. 8-9 (La.App. 1st Cir. 6/9/06), 938 So.2d 748, 753-54, writ denied, 06-2205 (La. 11/17/06), 942 So.2d 542.
We find no merit in Serrano's equitable estoppel argument for several reasons. First, Serrano argues that he relied on Foret's "representation that he would be an equal co-parent of the child born during the marriage, resulting in [his] acceptance of the obligations and responsibilities of a parent," and he also relied on his understanding of the law that he would attain the status of a legal parent of D.E.F. by marrying Foret. In his testimony, Serrano does not mention how Foret failed to allow him to act as an equal, co-parent during the marriage nor do we construe that representation as being anything greater than a recognition of Serrano's role as a step-parent. And as for the legal authority Serrano relied on, he vaguely testified that he "looked up articles and just some laws" that indicated if he married Foret, he "would have legal rights" to D.E.F. As previously discussed, the governing statutes and relevant jurisprudence provide no support for Serrano's assertion of such legal rights.
The only true showing of any possible detrimental reliance on Serrano's part was his resignation from his job as the supervisor of the parish animal shelter to care for D.E.F. Serrano had worked for the parish for roughly three and a half years prior to his resignation. Serrano admitted, however, that he continued to run a non-profit animal foundation where he worked roughly 25 to 30 hours per week. But even accepting Serrano's resignation as a detrimental action on his part, Serrano failed to show any representation of fact or law on which he could be said to have justifiably relied.
Serrano testified that he requested to be included as a party to the gestational carrier agreement, to be listed on D.E.F.'s birth certificate, and to formally adopt D.E.F., but Foret did not allow him to be included as a party to the gestational carrier agreement nor to be listed on D.E.F.'s birth certificate, despite Serrano's belief that his name could have been included on the birth certificate. With respect to adopting D.E.F., Serrano testified that Foret said he would arrange for such, but Serrano admitted that Foret never actually arranged for the adoption. Hence, we find that Serrano has shown no representation of fact or law upon which it can be said that he justifiably relied.
Serrano additionally cites La. C.C. art. 188 as support for his assertion that Foret should be equitably estopped from repudiating the presumption that he is the legal parent of D.E.F. Article 188 states "[t]he husband of the mother may not disavow a child born to his wife as a result of an assisted conception to which he consented." Serrano explains that Article 188 should apply because: clearly [he] knew of and consented to the planned pregnancy through surrogacy, and his voluntary entry into a marriage with [Foret] constitutes his consent to the birth of the child during the marriage, or at least an acknowledgement and acquiescence to it. On the same token, [Foret] too acquiesced to [Serrano's] parentage by marrying him during the pregnancy....
Serrano points out his unrebutted testimony regarding how he participated in the surrogacy process and served as a primary caregiver to D.E.F. following his birth supports the use of Article 188 in this case.
We find Serrano's reliance on Article 188 is misplaced. First, we question whether Serrano can be said to have properly given consent, as the statute requires consent by a spouse (husband). In this case, any consent that Serrano may have given to Foret to use assisted conception would have occurred at the time of the in vitro fertilization to create the embryo that would later be gestated to become D.E.F. The parties stipulated that in vitro fertilization of a donated egg with Foret's sperm occurred on August 31, 2019, whereby a zygote was created and later frozen on September 5, 2019. The zygote was later implanted in the uterus of a gestational carrier on June 23, 2020. Serrano married Foret in January 2021. So, at the time Foret undertook assisted conception, Serrano was not married to Foret, and therefore, any consent by Serrano would not have been that of a spouse.
The description of a zygote provided at the hearing is similar to the statutory definition of a human embryo, but as noted by the court in Loeb v. Vergara, 20-0261, p. 4 n.3 (La.App. 4th Cir. 1/27/21), 313 So.3d 346, 354 n.3, writ denied, 21-00314 (La. 4/20/21), 313 So.3d 1257, a zygote is simply a fertilized egg that has not been implanted in a uterus.
Additionally, we observe that to accept Serrano's claim that Foret's opposition to his rule to establish custody is in actuality a disavowal action would require conceding that the presumption of Article 185 applies to make Serrano a legal parent, which we decline to concede. Moreover, disavowal is an action brought by the presumed parent. If Article 185 were to be applied as Serrano suggests, Serrano would be the presumed parent, not Foret. See La. C.C. art. 187, cmt (b).
We likewise find Serrano's testimony regarding the degree of his involvement in the surrogacy process fails to demonstrate any sacrificial or detrimental conduct on his part. Serrano admitted that he and Foret had been involved in an on-again, off-again relationship in the nine years before their marriage, and that at the time the decision to pursue surrogacy was made, they were not living together. And while Serrano testified that he provided some input regarding the selection of an egg donor, he acknowledged that Foret did all the necessary surrogacy research, executed the agreement for in vitro fertilization, contributed the sperm for in vitro fertilization, executed the agreement with the gestational carrier (surrogate), and paid all the expenses for the in vitro fertilization and the gestational carrier. Additionally, the in vitro fertilization process, the implantation of the embryo in the gestational carrier, and over six months of the pregnancy had all taken place prior to the parties' marriage. Thus, we find no merit in Serrano's claim of equitable estoppel and reject the same.
A human embryo is defined by statute as "an in vitro fertilized human ovum, with certain rights granted by law, composed of one or more living human cells and human genetic material so unified and organized that it will develop in utero into an unborn child." La. R.S. 9:121.
Legislative Province
Finally, Serrano urges us to jurisprudentially expand the reading of Article 185 to find it applicable to him. However, courts do not make the law. Their fundamental duty is to give effect to the legislature's intent in passing a statute. Deal v. Perkins, 22-01212, p, 20 (La. 8/1/22), 347 So.3d 121, 134. Courts are not free to rewrite laws to effect a purpose that is not otherwise expressed. Luv N' Care, Ltd, v. Jackel International Limited, 19-0749, p. 10 (La. 1/29/20), 347 So.3d 572, 579. It is for the legislative branch to remedy the deficiencies in the statutory scheme, if it should so desire. J. Reed Constructors, Inc, v. Roofing Supply Group,L.L.C., 12-2136, p. 6 (La.App. 1st Cir. 11/1/13), 135 So.3d 752, 756, writ denied, 14-1031 (La. 9/12/14), 148 So.3d 931. See also Cook, 20-01471 atp. 11, 330 So.3d at 160 (Griffin, J., concurring) ("It is incumbent on the legislature to address these important policy issues of child custody and visitation rights involving samesex relationships.").
An advocate for the extension of the marital presumption of parentage to male same-sex spouses similarly indicates that any revision of existing law should be done legislatively, rather than judicially, by opining:
Since in most cases involving same-sex couples the spouse of the individual who gave birth will not be genetically connected to the child, to create a marital presumption that fairly, logically, and effectively encompasses same-sex couples, states must engage in the important undertaking of restructuring their current standards so that a spouse's lack of genetic connection to the child, by itself, is no longer the basis for rebuttal [of the marital presumption of parentage] (at least in cases of nonsexual conception).Jessica Feinberg, After Marriage Equality: Dual Fatherhood for Married Male Same-Sex Couples, 54 U.C. Davis L. Rev. 1507, 1520 (2021). In light of such concerns and absent contrary direction by a higher court, we must follow the true meaning of legislative enactments as actually written, leaving to the legislature to make changes in statutes. See Mathews v. Steib, 11-0356, pp. 4-5 (La.App. 1st Cir. 12/15/11), 82 So.3d 483, 486, writ denied, 12-0106 (La. 3/23/12), 85 So.3d 90; see also State v. Reddick, 21-01893, p. 2 (La. 10/21/22), 351 So.3d 273, 274. (wherein the court relied on the principle that the judiciary's "role as a co-equal branch of government is to interpret the laws, not to announce policy more rightfully reserved to the legislature" to support its refusal to give retroactive effect to the constitutional requirement of jury unanimity announced in Ramos v. Louisiana, 590 U.S., 140 S.Ct. 1390, 206 L.Ed.2d 583 (2020)). Therefore, we cannot jurisprudentially expand Article 185 in the way Serrano suggests.
CONCLUSION
For the foregoing reasons, we find the trial court did not err in decreeing that Serrano is not the legal parent of the child born during his same-sex marriage to Foret. All costs are therefore cast to the relator, Jason Serrano.
APPEAL CONVERTED TO SUPERVISORY WRIT; WRIT DENIED.