Michigan Cases April 01, 2021: LeFever v. Matthews

Case Description

Regina D. Jemison and National Center for Lesbian Rights (by Catherine P. Sakimura and Christopher F. Stoll ) for defendant.

Bassett & Associates, PLLC, Ann Arbor (by Jane A. Bassett ) for Professors of Family Law, amicus curiae.

American Civil Liberties Union Fund of Michigan (by Jay D. Kaplan, Livonia and Daniel S. Korobkin) and American Civil Liberties Union Foundation (by Taylor Brown and Leslie Cooper ) for American Civil Liberties Union, American Civil Liberties Union of Michigan, Center for Reproductive Rights, Center for Genetics and Society, and Pro-Choice Alliance for Responsible Research, amici curiae.

Before: Gleicher, P.J., and K. F. Kelly and Riordan, JJ.

Riordan, J.

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In this child custody case, defendant, Lanesha Matthews, appeals as of right the trial court's order of parentage, custody, and parenting time. The trial court awarded sole legal custody and sole physical custody of plaintiff's and defendant's two minor children to plaintiff, Kyresha LeFever, granted parenting time to defendant, and ordered defendant's name be removed from the children's birth certificates. The custody order was premised on an earlier determination that defendant was merely a third party and not a parent of the children because, although she gestated and birthed the children, she did not have a genetic connection to them, unlike plaintiff, whose ova were used in the procreation of the children.

However, we conclude that the trial court improperly interpreted the term "parent" as defined by MCL 722.22(i) in the Child Custody Act (CCA), MCL 722.21 et seq. , as requiring a genetic connection and misapplied

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the Surrogate Parenting Act (SPA), MCL 722.851 et seq. Accordingly, we vacate the trial court's order and remand this case for further proceedings.

I. FACTS AND PROCEDURAL HISTORY

This case arises out of the dissolution of the parties’ relationship and the subsequent custody dispute over their two minor children, twin girls. Plaintiff and defendant, both women, began a romantic relationship in 2011. At some point during the relationship, they decided to have children together using plaintiff's eggs, fertilized by a sperm donor and implanted in defendant's womb. The in vitro fertilization resulted in defendant's pregnancy with the twins. Although the parties intended for defendant to give birth in Ohio, where both women could be listed on the birth certificates, defendant gave birth two months early in Michigan. At that time, the Michigan Department of Health and Human Services Division for Vital Records permitted one father and one mother to be listed on a birth certificate. As a result of this practice, defendant was listed as the twins’ mother, and although plaintiff was not listed on the birth certificates, the twins were given plaintiff's last name.

The parties cohabitated and parented the twins together until they separated in 2014—before statutes excluding same-sex couples from marriage were declared unconstitutional in Obergefell v. Hodges , 576 U.S. 644, 135 S. Ct. 2584, 192 L.Ed.2d 609 (2015). The parties continued coparenting the twins and shared custody until defendant experienced serious health concerns in 2016. At that time, plaintiff became the twins’ primary caretaker until 2018, when a custody dispute arose.

In November 2018, plaintiff filed a complaint for custody of the twins as well as a motion to establish

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interim custody and parenting time. The matter was heard by a referee, who determined parentage should first be established. The case was dismissed and resubmitted by plaintiff as a complaint to establish parentage.

The trial court held a hearing to establish plaintiff's standing as a parent. Plaintiff argued that she was the twins’ "natural mother" by virtue of her genetic connection to the children and that defendant, the "gestational surrogate," was merely "the woman who carried the eggs of [plaintiff] and the sperm of an anonymous donor[.]" Plaintiff also raised due-process and equal-protection arguments. Defendant countered that the SPA applied in such a way that it invalidated any surrogacy contract between the parties. Defendant reasoned that because there is no valid surrogacy contract, she is the twins’ "natural parent" by default because she gave birth to them. Defendant further argued that Michigan

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law provides no avenue for conferring maternity on a party except by way of birth and delivery of a child and that, therefore, plaintiff lacked standing to seek custody. Defendant asserted that the parties decided not to have plaintiff recognized as a legal parent of the children at the time of their birth and that plaintiff must now live with the consequences of that decision.

The trial court found that plaintiff is the twins’ "natural and legal mother" and ordered that the birth certificates be amended to add plaintiff. The trial court also awarded joint legal custody on an interim basis and set forth a parenting-time schedule. However, during the preliminary hearing, the trial court raised the issue of defendant's standing as a "natural parent" and ordered additional briefing on the matter. Defendant

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moved for reconsideration of the trial court's orders; the trial court denied the motion.

Regarding defendant's standing, plaintiff then argued that defendant was not the twins’ natural parent because she shared no genetic connection with them. In response, defendant maintained her position that her biological connection to the twins, by way of gestation, made her the twins’ natural parent too. Defendant argued that neither the statute, nor the dictionary definition, limit "natural parent" to mean only a genetic parent and that such a narrow interpretation of the term is antithetical to the purpose of the CCA and would violate her constitutional rights to substantive due process and equal protection. Defendant also argued that she has "standing by agreement" by way of the parties’ comaternity arrangement and that plaintiff's action to revoke defendant's parentage of the twins was barred by the limitations period in MCL 722.1437(1) of the Revocation of Paternity Act, MCL 722.1431 et seq.

The trial court concluded that the SPA applied to the facts of this case because the act broadly defines a surrogate-parentage contract as encompassing any arrangement in which a female agrees to conceive a child through artificial insemination or in which a female agrees to surrogate gestation. The trial court further reasoned that the SPA identifies the "mother" as a party with a genetic connection to the child, whereas a "surrogate carrier" gestates and births a child to whom she has no genetic relationship. The trial court recognized that the SPA does not indicate which party should have custody to the resultant offspring but, rather, directs courts to apply the CCA.

The trial court noted that this case presents a matter of first impression in Michigan, but it considered

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the various outcomes in other jurisdictions under similar factual circumstances. The trial court was persuaded by the public policy rationale in Belsito v. Clark , 67 Ohio Misc. 2d 54, 644 N.E.2d 760 (1994). The trial court also considered MCL 722.1003 of the Acknowledgment of Parentage Act, MCL 722.1001 et seq ., the Safe Delivery of Newborns Law, MCL 712.1 et seq ., the Michigan Adoption Code, MCL 710.21 et seq ., and finally, the CCA, which defines a parent as "natural" or "adoptive," MCL 722.22(i). The trial court concluded that "the [L]egislature of this state has established that it is the public policy of this state to identify a parent as a person with a biological connection to the child." In this case, the trial court concluded that plaintiff, by way of her genetic connection to the twins, was the only party to establish a biological connection. As a result, this finding created a presumption that the best interests of the twins were served by awarding plaintiff custody, while the SPA granted defendant standing as a third party.

Defendant sought leave to appeal in this Court, but the application was dismissed for lack of jurisdiction because the opinion

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issued by the trial court was not a decision on a dispositive motion. LeFever v. Matthews , unpublished order of the Court of Appeals, entered October 23, 2019 (Docket No. 351133). Accordingly, the matter progressed to trial where defendant was required to show by clear and convincing evidence that it was in the twins’ best interests for her to have custody.

After a six-day trial, the court concluded that defendant failed to carry her burden to establish parentage. Plaintiff was awarded full legal and physical custody, and the trial court ordered that defendant's name be removed from the twins’ birth certificates. However, the trial court granted parenting time to defendant

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because of her standing as a third party under MCL 722.27(1)(b). Defendant now appeals and challenges the trial court's finding that she is not a natural parent. She argues that the trial court misinterpreted the CCA when it found that she is not a "natural parent," that it misapplied the SPA to the facts of this case, and that the trial court's order implicates her federal constitutional rights to substantive due process and equal protection under the law.

II. STANDARDS OF REVIEW

Legal standing constitutes a question of law that we review de novo. Heltzel v. Heltzel , 248 Mich. App. 1, 28, 638 N.W.2d 123 (2001). Because it relates specifically to "the resolution of a child custody dispute," the CCA provides that "all orders and judgments of the circuit court shall be affirmed on appeal unless the trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue." MCL 722.28. "A clear legal error occurs when the circuit court incorrectly chooses, interprets, or applies the law...." Kubicki v. Sharpe , 306 Mich. App. 525, 538, 858 N.W.2d 57 (2014) (quotation marks and citation omitted); Fletcher v. Fletcher , 447 Mich. 871, 881, 526 N.W.2d 889 (1994). We review de novo matters of statutory interpretation and constitutional issues. Estes v. Titus , 481 Mich. 573, 578-579, 751 N.W.2d 493 (2008) ; In re MKK , 286 Mich. App. 546, 556, 781 N.W.2d 132 (2009).

III. THE CHILD CUSTODY ACT

Defendant first argues that the trial court committed error requiring reversal when it concluded that she was not a "natural parent" under the CCA because she lacked a genetic connection to the twins. We agree.

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The CCA governs custody, parenting time, and child support issues for minor children in Michigan, and it is the exclusive means of pursuing child custody rights. MCL 722.24(1) ; Aichele v. Hodge , 259 Mich. App. 146, 153, 673 N.W.2d 452 (2003). It is "equitable in nature" and must be "liberally construed and applied to establish promptly the rights of the child and the rights and duties of the parties involved." MCL 722.26(1). The CCA contains the following parental presumption:

If a child custody dispute is between the parents, between agencies, or between third persons, the best interests of the child control. If the child custody dispute is between the parent or parents and an agency or a third person, the court shall presume that the best interests of the child are served by awarding custody to the parent or parents, unless the contrary is established by clear and convincing evidence. [ MCL 722.25(1).]

"Parent" is defined as "the natural or adoptive parent of a child." MCL 722.22(i). However, determining whether the term "natural parent" is elastic enough to include defendant is a matter of statutory

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interpretation. To that end, we consider the following principles:

"The judiciary's objective when interpreting a statute is to discern and give effect to the intent of the Legislature. First, the court examines the most reliable evidence of the Legislature's intent, the language of the statute itself. When construing statutory language, the court must read the statute as a whole and in its grammatical context, giving each and every word its plain and ordinary meaning unless otherwise defined. Effect must be given to every word, phrase, and clause in a statute, and the court must avoid a construction that would render part of the statute surplusage or nugatory. If the language of a statute is clear and unambiguous, the statute must be enforced as written and no further judicial construction is permitted. Generally, when language is included in one section of a statute but omitted from another section, it is presumed

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that the drafters acted intentionally and purposely in their inclusion or exclusion. The courts may not read into the statute a requirement that the Legislature has seen fit to omit. When the Legislature fails to address a concern in the statute with a specific provision, the courts cannot insert a provision simply because it would have been wise of the Legislature to do so to effect the statute's purpose. Statutes that address the same subject matter or share a common purpose are in pari materia and must be read collectively as one law, even when there is no reference to one another." [ In re Jajuga Estate , 312 Mich. App. 706, 712, 881 N.W.2d 487 (2015), quoting Book–Gilbert v. Greenleaf , 302 Mich. App. 538, 541–542, 840 N.W.2d 743 (2013) (brackets omitted).]

The term "natural parent" is not defined by the statute. However, we have previously interpreted the term to mean a blood relation. Stankevich v. Milliron (On Remand), 313 Mich. App. 233, 236, 882 N.W.2d 194 (2015) ( Stankevich III ) (citing the Random House Webster's College Dictionary (2005) definition of "natural"). A blood relation is different from relation by affinity or adoption, and the term "natural parent," as used in the CCA, does not include those relationships. This is supported by the inclusion of the term "adoptive parent" as a separate category from "natural parent" within the same subdivision, MCL 722.22(i). Thus a "parent" within the meaning of the CCA does not include relations such as stepparents (who are related to a child by marriage or affinity), foster parents (whose relationship to a child is determined and controlled by the agency foster/parent agreement), or grandparents (who may be related to a child by consanguinity, but are removed in their relation by one degree). Such parties are "third persons" under the CCA. See MCL 722.22(k) (defining "third person" as "an individual other than a parent");

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In re Anjoski , 283 Mich. App. 41, 52, 770 N.W.2d 1 (2009) (considering a stepparent as a third party); Tallman v. Milton , 192 Mich. App. 606, 482 N.W.2d 187 (1992) (considering foster parents as third parties); Bowie v. Arder , 441 Mich. 23, 48–49, 490 N.W.2d 568 (1992) (considering a grandparent as a third party). Here, defendant's relationship to the twins as their birth mother has a closer biological connection than a stepparent or foster parent; the connection is arguably even closer than that of a grandparent because she gave birth to the children.

Moreover, when interpreting an undefined statutory term, the term "must be accorded its plain and ordinary meaning." Brackett v. Focus Hope, Inc. , 482 Mich. 269, 276, 753 N.W.2d 207 (2008). Consulting a lay dictionary is proper when defining common words or phrases that

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lack a unique legal meaning, but when the statutory term is a legal term of art, the term must be construed in accordance with its peculiar and appropriate legal meaning. Id. Black's Law Dictionary (11th ed.) does not define "natural parent," but it defines "blood relative" as "[s]omeone who shares an ancestor with another." Id. at 1542. In addition, the entry for "genetic parent" refers to the definition of "biological parent," which is "[t]he woman who provides the egg ... to form the zygote that grows into an embryo." Id. at 1340, 1341. "Birth parent" is defined as "[e]ither the biological father or the mother who gives birth to the child." Id. at 1340. Thus, plaintiff meets the definition of "biological parent" and "genetic parent," and defendant satisfies the definition of a "birth parent." However, those terms are not included in the definition of "blood relative" or otherwise mention the term "natural parent."

Accordingly, we must consider the lay dictionary definition as we did in

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Stankevich III , 313 Mich. App. at 236, 882 N.W.2d 194. We have found no dictionary definition of "natural parent," but, building off our analysis in Stankevich III , we consider the various dictionary definitions of "blood relation" and conclude that the term is used to differentiate between those related by birth and those related by adoption. See The American Heritage Dictionary of the English Language (5th ed.) (defining "blood relation" as "a person who is related to another by birth rather than by marriage"); Merriam-Webster.com Dictionary,

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blood relative < https://www.merriam-webster.com/dictionary/blood%20relative> [https://perma.cc/G3SL-N377] (defining "blood relative" as "someone who has the same parents or ancestors as another person"); MacmillanDictionary.com, blood relation < https://www.macmillandictionary.com/us/dictionary/american/blood-relation> [https://perma.cc/N8P5-HJDJ] (defining "blood relation" as "someone that you are related to by birth, rather

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than by marriage"); Dictionary.Cambridge.org, blood relation < https://www/dictionary.cambridge.org/us/dictionary/english/blood-relation> [https://perma.cc/54VZ-GVG3] (defining "blood relation" as "someone who is related to you by birth rather than through marriage"). Thus, the textual clues indicate that the term "natural parent" is elastic enough to include defendant, who, although she has no genetic connection to the twins, is related to them by the process of birthing them rather than through marriage.

In concluding otherwise, the trial court erroneously considered the genetic requirements in other family-law statutes, namely, MCL 722.1003 of the Acknowledgment of Parentage Act, the Safe Delivery of Newborns Law, and the Michigan Adoption Code. "However, the first step of statutory interpretation is to review the language of the statute at issue, not that of another statute."

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Spectrum Health Hosps. v. Farm Bureau Mut. Ins. Co. of Mich. , 492 Mich. 503, 521, 821 N.W.2d 117 (2012). Although a statute must be read in conjunction with other relevant statutes and interpreted in a manner that ensures that it works in harmony with the entire statutory scheme, Potter v. McLeary , 484 Mich. 397, 411, 774 N.W.2d 1 (2009), none of these other statutes was implicated by the facts of this case.

In addition, a review of these statutes does not support the trial court's conclusion that Michigan law generally requires a genetic connection in order to establish maternity. Specifically, the trial court concluded that " MCL 722.1003, Michigan's Acknowledgment of Parentage Act has clearly identified that only a biological parent will have the ‘duties of a child-parent relationship and legal status of [a] natural parent’...." However, the act establishes paternity (not maternity). MCL 722.1004. The act defines the term "father" but not the term "mother." MCL 722.1002. Moreover, the act defines "father" as "the man who signs an acknowledgment of parentage of a child." MCL 722.1002(d). This definition does not hint at any legal requirement of a genetic connection between a parent and a child. In fact, "[n]othing in the Acknowledgement of Parentage Act requires that the man completing the acknowledgement form actually be the child's biological father." In re Daniels Estate , 301 Mich. App. 450, 456, 837 N.W.2d 1 (2013). MCL 722.1007(g)( i ) expressly provides that the acknowledgment form must include notice that signing the form waives blood or genetic tests to determine if the man is the biological father of the child. The only indication in the act as to how maternity is determined is found in MCL 722.1002(b), which defines the term "child" as "a child conceived and born to a woman ...." This definition does not include a requirement that the child be conceived by the samewoman

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who births the child, and it does not indicate any preference for a genetic parent to take priority over a birth parent. Although MCL 722.1437 permits the revocation of

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an acknowledgment of parentage, "[n]othing in the act indicates that DNA results, standing alone, are sufficient to require revocation of an acknowledgment of parentage." Helton v. Beaman , 304 Mich. App. 97, 108, 850 N.W.2d 515 (2014) (opinion by O'CONNELL , J.).

The Safe Delivery of Newborns Law states that a party petitioning for custody of a newborn may be ordered to submit to genetic testing "[u]nless the birth was witnessed by the emergency service provider and sufficient evidence exists to support maternity[.]" MCL 712.11(2). Thus, it appears that the act only contemplates scenarios in which a birth mother is also the genetic mother, and it is uninformative as to the statutory construction of the CCA in this case.

The trial court's reliance on the Adoption Code is also misplaced. The act does not define or otherwise address genetic parents or birth parents. In addition, the trial court did not consider the Genetic Parentage Act, MCL 722.1461 et seq. , which permits a man to establish paternity by way of blood, tissue, or genetic testing. MCL 722.1467. The act focuses on a genetic parent-child connection, but considering it in the context of the entire statutory scheme, it does not support a conclusion that the Legislature intended for genetics to be the only way to establish parentage. Rather, the Legislature has provided numerous statutory paths to establishing paternity. In re MKK , 286 Mich.App. at 557, 781 N.W.2d 132. There is no indication in the plain language of any of these statutes that the Legislature intended to limit the path to establishing maternity to the single route of demonstrating a genetic connection.

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In addition, the trial court relied on the public-policy rationale provided in Belsito v. Clark , 67 Ohio Misc. 2d 54, 644 N.E.2d 760. We do not find this case by the Ohio Court of Common Pleas to be persuasive. In that case, the plaintiffs, Anthony and Shelly Belsito, a heterosexual married couple, used in vitro fertilization to combine their own genetic material and produce an embryo that was implanted into a surrogate, Carol Clark (Shelly's younger sister). Id. at 56, 644 N.E.2d 760. Before the child was born, the local hospital informed Shelly that, in accordance with Ohio law, Carol would be listed on the birth certificate as the child's mother, and because Carol was not married to the child's father, Anthony, the child would be considered illegitimate. Id. at 58, 644 N.E.2d 760. Thereafter, Shelly, along with Anthony, sought a declaratory order recognizing that they were the child's legal and natural parents. Id. The court concluded that, although both Shelly and Carol would be considered legal mothers under the language of the applicable Ohio statutes, society would be served best by a determination that only one woman was the child's mother. Id. at 58, 65-66, 644 N.E.2d 760.

On public-policy grounds, the Ohio court rejected the "intent test" adopted by California courts whereby parentage was awarded to the intended parent. Id. at 61-62, 644 N.E.2d 760. Instead, the court, without reliance on any legal authority, concluded that in such cases, genetics wins out over gestation because the "genetic parent can guide the child from experience through the strengths and weaknesses of a common ancestry of genetic traits." Id. at 64, 644 N.E.2d 760. However, our Supreme Court has stated that "[i]t is not within the authority of the judiciary ‘to redetermine the Legislature's choice or to independently assess what would be most fair or just or best public policy.’ " Lash v. Traverse City , 479 Mich. 180, 197, 735 N.W.2d 628 (2007), quoting Hanson v. Mecosta Co. Rd. Comm'rs , 465 Mich. 492, 504, 638 N.W.2d 396 (2002).

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Therefore, we vacate the trial court's final order and remand this case for the trial court to consider custody and parenting time with both parties as "natural parents" under the CCA.

IV. THE SURROGATE PARENTING ACT

Defendant also argues that the trial court erred when it concluded that the SPA applies to the facts of this case. We agree but conclude that the trial court's misapplication of the law does not require reversal.

The SPA governs surrogacy agreements. MCL 722.855 renders invalid surrogate-parentage contracts.

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MCL 722.853(i) defines "surrogate parentage contract" as follows:

[A] contract, agreement, or arrangement in which a female agrees to conceive a child through natural or artificial insemination, or in which a female agrees to surrogate gestation, and to voluntarily relinquish her parental or custodial rights to the child. It is presumed that a contract, agreement, or arrangement in which a female agrees to conceive a child through natural or artificial insemination by a person other than her husband, or in which a female agrees to surrogate gestation, includes a provision, whether or not express, that the female will relinquish her parental or custodial rights to the child. [Emphasis added.]

In turn, "surrogate gestation" means "the implantation in a female of an embryo not genetically related to that female and subsequent gestation of a child by that female." MCL 722.853(g). In addition, MCL 722.861 provides:

If a child is born to a surrogate mother or surrogate carrier pursuant to a surrogate parentage contract, and there is a dispute between the parties concerning custody of the child, the party having physical custody of the child may retain physical custody of the child until the circuit court orders otherwise. The circuit court shall award legal custody of the child based on a determination of the best interests of the child. As used in this section, "

There is no doubt that the parties had an arrangement, though not at arm's

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length, for plaintiff to provide the eggs and for defendant to carry and birth the twins. However, we have previously explained that the voluntary relinquishment of parental rights is a necessary element to finding that a surrogate-parentage contract exists:

The statutory language clearly defines "a surrogate parentage contract" as consisting of two elements: (1) conception, through either natural or artificial insemination,

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of, or surrogate gestation by a female and (2) her voluntary relinquishment of her parental rights to the child. Only a contract, agreement, or arrangement combining these two elements constitutes a "surrogate parentage contract" that is void and unenforceable under the act.

* * *

To summarize, we hold:

(1) A surrogate parentage contract is void and unenforceable under § 5;

* * *

(3) For a surrogate parentage contract to exist there must be present the elements of (1) conception, through either natural or artificial insemination, of, or surrogate gestation by a female and (2) the voluntary relinquishment of her parental rights to the child; and

(4) A contract, agreement, or arrangement that does not contain both elements set forth in (3) above is neither void and unenforceable under § 5 nor unlawful and prohibited by § 9, even when entered into for compensation. [ Doe v. Attorney General , 194 Mich. App. 432, 441-443, 487 N.W.2d 484 (1992).]

MCL 722.853(i) does not state that the presumption of relinquishment of parental rights is conclusive, but it also does not indicate what level of proof is required to rebut the presumption of relinquishment. Therefore, we must use the "the usual standard required to overcome a rebuttable presumption: competent and credible evidence." Reed v. Breton , 475 Mich. 531, 539, 718 N.W.2d 770 (2006). In addition, when a statute does

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not specify the standard of proof, the usual civil "preponderance of the evidence" quantum of proof applies. Mayor of Cadillac v. Blackburn , 306 Mich. App. 512, 521-522, 857 N.W.2d 529 (2014) ; Residential Ratepayer Consortium v. Pub. Serv. Comm. , 198 Mich. App. 144, 149, 497 N.W.2d 558 (1993).

The trial court did not make any finding on whether the evidence in this case successfully rebutted the statutory presumption of relinquishment of parental rights in MCL 722.853(i). However, the parties testified that they intended to coparent the twins, and the clinic forms filled out by the parties at the time of the in vitro fertility treatments state that the parties intended a comaternity arrangement. In any event, the trial court does not need to consider this issue on remand because, even assuming

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the SPA applies, MCL 722.861 of the SPA directs the trial court to consider the best-interest factors in the CCA when determining legal custody. Notably, the SPA does not indicate that the surrogate mother is a third party under the CCA, nor does it cross-reference any

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other provision of the CCA. Nor does MCL 722.23 (the CCA's best-interest factors) cross-reference MCL 722.25(1) (the parental-presumption provision of the CCA). But because the CCA is the exclusive means of pursuing child custody rights, there is no reason to conclude that MCL 722.25(1), which provides that the best interests of the child are served by awarding custody to the child's parent or parents unless there is clear and convincing evidence to the contrary, is inapplicable. In other words, even if the SPA applies, defendant remains a "natural parent" under the CCA, as already discussed, and the trial court's erroneous conclusion that the SPA applies does not alter the outcome of the case.

V. CONSTITUTIONAL CLAIMS

Defendant also argues that the trial court's order violates her constitutional rights under the Equal Protection Clause and Due Process Clause of the United States Constitution. However, because we conclude that the trial court erred in its interpretation of the CCA and misapplied the SPA in this case, we need not address defendant's remaining constitutional arguments. See Dep't of Health & Human Servs. v. Genesee Circuit Judge , 318 Mich. App. 395, 407, 899 N.W.2d 57 (2016) (noting that the widely accepted and venerable rule of constitutional avoidance counsels that we first consider whether statutory or general law concepts are instead dispositive).

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VI. CONCLUSION

The trial court erred when it concluded that defendant is not a "natural parent" under the CCA because she lacks a genetic link to the twins whom she carried through gestation and birthed. Accordingly, we vacate

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the custody order and remand this case to the trial court for a new custody hearing in which both parties are considered parents.

K. F. Kelly, J. concurred with Riordan, J.

Gleicher, P.J. (concurring).

Kyresha LeFever and Lanesha Matthews agreed to create and parent a child together. Using assisted reproductive technology, their

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efforts resulted in the birth of twins. The majority holds that both women are legal mothers of the twins. I fully concur.

As the majority cogently explains, the trial court erred by interpreting the Surrogate Parenting Act (SPA), MCL 722.851 et seq. , as an impediment to the parental standing of Matthews, who bore the children. No surrogacy contract existed and neither woman agreed to relinquish her parental rights, removing this case from the SPA's ambit. The trial court further erred, the majority points out, by plucking excerpts from other unrelated, inapplicable statutory provisions in an effort to condition a mother's right to parent on a genetic relationship. I write separately to propose an additional analysis and to address the constitutional questions the majority abjures.

I. THE COMMON LAW AND THE CHILD CUSTODY ACT

The novel legal issue presented in this custody dispute is whether Matthews, who bore twins while in a committed, nonmarital relationship with LeFever, is entitled to be recognized as the children's mother. Given that LeFever supplied the ova that were fertilized by donor sperm and implanted in Matthews's uterus, the trial court determined that only LeFever qualified as the twins’ "natural parent." Matthews, the trial court ruled, was a "third party" entitled to none of the rights of parenthood. In rejecting the trial court's reasoning and ruling, the majority centers its analysis on the Child Custody Act (CCA), MCL 722.21 et seq. , specifically the act's definition of "parent" as "the natural or adoptive parent of a child." MCL 722.22(i). My colleagues devote considerable effort to unraveling the meaning of "natural parent," consulting four different

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dictionaries before ultimately concluding that the term "is elastic enough to include" a child's birth mother.

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This dictionary-driven search for a suitable definition is unnecessary. A woman who gives birth to a child is that child's natural mother under the common law, and there is no reason to look elsewhere for the meaning.

For centuries, "natural mother" has meant a woman who gestates and bears a child; the common law knew no other possibility. "Historically, gestation proved genetic parentage beyond doubt, so it was unnecessary to distinguish between gestational and

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genetic mothers." Roosevelt, The Newest Property: Reproductive Technologies and the Concept of Parenthood , 39 Santa Clara L. Rev. 79, 97 (1998). This case involves children born to lesbian women who were legally prohibited from marrying at the time of the children's conception. Under the common law, an unmarried woman who gave birth was always considered the mother and had no need to legally establish her custodial rights. "At the moment of birth, the nonmarital child—unlike the marital child—had one legal parent: the mother. Gestation and birth evidenced the biological fact of maternity and furnished a relationship to the child that justified legal recognition." NeJaime, The Nature of Parenthood , 126 Yale L.J. 2260, 2267 (2017).

When the CCA was enacted in 1970, the Legislature undoubtedly assumed that a woman who bore a child would automatically qualify as the child's natural mother; it made no provision for an alternate choice, and nothing in the act even remotely contemplates a dispute regarding maternity. Three decades later, when enacting the Estates and Protected Individuals Code (EPIC), MCL 700.1101 et seq. , the Legislature described various methods through which a man may attain the status of a "natural parent," but it again presumed that a woman bearing a child was the child's "natural" mother. See MCL 700.2114. Because the plain and ordinary meaning of the term "natural

[336 Mich.App. 679]

parent" includes a woman who bears a child, I would hold that Matthews is a "natural parent." Accordingly, I concur with the majority that a genetic connection to one's child is unnecessary to establish maternity.

II. THE CONSTITUTION

The majority elects against addressing the constitutional arguments made by

[971 N.W.2d 688]

Matthews and amici. In my view, the constitutional issues presented are weighty and merit consideration, particularly because they may become relevant on remand and in similar cases.

Excluding a married birth mother who achieved parenthood through assisted reproductive technology from consideration as a "natural parent" poses serious equal-protection problems. Michigan law provides that a husband is the legal parent of a child born to his wife through assisted reproduction technology if he consented to the procedure. MCL 333.2824(6). Analogously, a married woman in a same-sex relationship should have precisely the same right.

Matthews and LeFever could not have legally married in Michigan when the twins were born, and when they separated, same-sex marriage remained illegal. At

[336 Mich.App. 680]

that time, the common law did not authorize or even recognize the concept of two legal fathers. See Michael H. v. Gerald D. , 491 U.S. 110, 118, 109 S. Ct. 2333, 105 L. Ed. 2d 91 (1989) (opinion by Scalia, J.) ("California law, like nature itself, makes no provision for dual fatherhood."). Before Obergefell v. Hodges , 576 U.S. 644, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015), dual motherhood was also considered legally impossible. See Johnson v. Calvert , 5 Cal. 4th 84, 92, 19 Cal.Rptr.2d 494, 851 P.2d 776 (1993) ("Yet for any child California law recognizes only one natural mother, despite advances in reproductive technology rendering a different outcome biologically possible.").

The majority relies on the CCA to conclude that here, both women have parental standing, but it takes as a given that an unmarried egg donor such as LeFever is automatically a second "natural parent" under the CCA. The CCA does not identify genetics as a criterion establishing parenthood. Historically, when it came to paternity, genetics were not relevant to the fatherhood of a child born of a marriage; the marital presumption instead controlled. The sperm donor who fertilized the eggs implanted in Matthews's uterus certainly is not a candidate for official fatherhood of the twins. Why should LeFever, whose role was analogous to the sperm donor, have automatic standing under the CCA?

I suggest that this gap in the majority's opinion remains unaddressed because the majority inherently accepts an unarticulated proposition: by donating genetic material, LeFever demonstrated her intent to

[336 Mich.App. 681]

parent, and that, combined with the commitment of her ova, sufficed to endow her with "natural parent" status.

In D.M.T. v. T.M.H. , 129 So.3d 320, 327 (Fla., 2013), the Florida Supreme Court confronted precisely this issue. There, the mother who gestated and bore the child asserted that her partner, the egg donor, had no fundamental right to parent the child. The Florida Supreme Court held that Florida's assisted reproduction statute was unconstitutional on due-process and equal-protection grounds, in part because it denied same-sex couples "the statutory protection against the automatic relinquishment of parental rights that it affords to heterosexual unmarried couples seeking

[971 N.W.2d 689]

to utilize the identical assistance of reproductive technology." Id. at 328. The Michigan and Florida statutory schemes are dissimilar. But the larger constitutional holding of Florida's Supreme Court resonates: "The due process guarantees in the Florida and United States Constitutions and the privacy provision of the Florida Constitution do not permit the State to deprive this biological mother of parental rights where she was an intended parent and actually established a parental relationship with the child." Id. at 347.

This approach dovetails with the purpose of the CCA: "This act is equitable in nature and shall be liberally construed and applied to establish promptly the rights of the child and the rights and duties of the parents involved." MCL 722.26(1). A "natural parent" paradigm focusing exclusively on genetics would exclude Matthews as a parent, despite that she birthed the children and intended to parent them. Similarly, a "natural parent" paradigm focusing exclusively on gestation and birth would exclude LeFever from establishing her status as a parent, despite that she intended to

[336 Mich.App. 682]

parent the twins and her egg donation demonstrated her commitment to parenthood. Indisputably, LeFever is also a "natural parent" despite that there was nothing "natural" about the process through which the twins were conceived. In the majority's parlance, the CCA's use of the term "natural parent" is "elastic enough" to include LeFever as well as Matthews.

LeFever and Matthews also have a constitutional right to the custody of their children. Our Supreme Court has described the CCA as "a comprehensive statutory scheme" representing "the exclusive means for pursuing" rights to a child's custody, support, and parenting time. Van v. Zahorik , 460 Mich. 320, 327-328, 597 N.W.2d 15 (1999). As the majority points out, the CCA does not specifically address the unique question presented in this case. The United States Constitution fills this gap. Longstanding constitutional principles compel the conclusion that both LeFever and Matthews are legal parents of the twins and are entitled to a full complement of parental rights.

"The essence of the Equal Protection Clauses is that the government not treat persons differently on account of certain, largely innate, characteristics that do not justify disparate treatment." Crego v. Coleman , 463 Mich. 248, 258, 615 N.W.2d 218 (2000). The Genetic Parentage Act (GPA), MCL 722.1461 et seq. , permits a man to establish paternity by way of genetic testing and to then acquire parental rights. The Revocation of Paternity Act (ROPA), MCL 722.1431 et seq. , grants an unmarried man who claims to be the father of a child standing to challenge paternity determinations under certain circumstances. No " ‘exceedingly persuasive justification’ " exists for treating men and women differently. See Mississippi Univ. for Women v. Hogan , 458 U.S. 718, 724, 102 S. Ct. 3331, 73 L. Ed. 2d 1090 (1982)

[336 Mich.App. 683]

("Our decisions also establish that the party seeking to uphold a statute that classifies individuals on the basis of their gender must carry the burden of showing an ‘exceedingly persuasive justification’ for the classification.") (citation omitted).

The GPA, MCL 722.1469(2) provides, in relevant part:

Genetic testing that determines the man is the biological father of a child under this act may be the basis for court-ordered child support, custody, or parenting time without further adjudication under the paternity act. The child who is the subject of the genetic testing has the same relationship to the mother and the man determined to be the biological father under this act as a child

[971 N.W.2d 690]

born or conceived during a marriage and has identical status, rights, and duties of a child born in lawful wedlock effective from birth.

A genetically proven mother is entitled to the same "status, rights, and duties," id. , as a genetically proven father, despite that she is unmarried to the birth mother. Under the EPIC, when a child is born out of wedlock or is not the "issue" of a marriage, a man is considered a child's "natural father" for purposes of intestate succession if he and the child "have established a mutually acknowledged relationship of parent and child that begins before the child becomes age 18 and continues until terminated by the death of either." MCL 700.2114(1)(b)( iii ). Interpreting this statute as allowing only men to utilize and benefit from alternative methods of establishing "natural parenthood" would violate basic equal-protection principles.

Further, LeFever and Matthews had a constitutional right to create the twins in the manner they chose, and it follows that both women have constitutionally protected due-process rights to parent the

[336 Mich.App. 684]

twins despite their nonmarital status. That Matthews lacks a genetic relationship with the twins is constitutionally irrelevant to her liberty interest in their custody. And even had she not personally gestated and birthed the children (or had an ovum from a donor other than LeFever been implanted in Matthews's womb), I suggest that both women would nonetheless be entitled to be considered parents of the twins.

"[T]he interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this Court." Troxel v. Granville , 530 U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000) (opinion by O'Connor, J.). Troxel drew on a number of cases expressing the same sentiment, including Wisconsin v. Yoder , 406 U.S. 205, 232, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972) ("The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition."); and Quilloin v. Walcott , 434 U.S. 246, 255, 98 S. Ct. 549, 54 L. Ed. 2d 511 (1978) ("We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected."). Troxel , 530 U.S. at 66, 120 S.Ct. 2054.

Had Matthews and LeFever been able to marry at the time the twins were born, it is likely both would have been named as parents on the birth certificates. This Court has developed an equitable-parent doctrine designed to permit married , nonbiological parents to secure parental rights. In Atkinson v. Atkinson , 160 Mich. App. 601, 608-609, 408 N.W.2d 516 (1987), we held that

a husband who is not the biological father of a child born or conceived during the marriage may be considered the

[336 Mich.App. 685]

natural father of that child where (1) the husband and the child mutually acknowledge a relationship as father and child, or the mother of the child has cooperated in the development of such a relationship over a period of time prior to the filing of the complaint for divorce, (2) the husband desires to have the rights afforded to a parent, and (3) the husband is willing to take on the responsibility of paying child support.

Our Supreme Court has refused to apply the equitable-parent doctrine to an unwed nonbiological parent, however, holding that "the extension of substantive rights regarding child custody implicates significant public policy issues and is within the province

[971 N.W.2d 691]

of the Legislature, not the judiciary." Van , 460 Mich. at 331, 597 N.W.2d 15.

Here, we confront a biological tie that makes the case for equitable parenthood stronger. And in the years that have elapsed since Van , our Legislature has signaled that neither marriage nor biology are central to parenthood. In addition to allowing unmarried men to establish paternity under the GPA, the Legislature allows an unmarried man to pursue parental rights under the ROPA. The ROPA defines an "alleged father" as "a man who by his actions could have fathered [a] child." MCL 722.1433(c). An "alleged father" may pursue an action to deprive a "presumed father," defined as "a man who is presumed to be the child's father by virtue of his marriage to the child's mother at the time of the child's conception or birth," MCL 722.1433(e), of parental rights. By enacting this statute, the Legislature empowered unmarried men to seek parental rights, signaling that marriage is not a prerequisite to legal parent status and custody of a child.

[336 Mich.App. 686]

Indeed, as Justice MARILYN KELLY pointed out in her dissent in Van , the CCA says nothing at all about biology or marriage and never defines the term "parent." Van , 460 Mich. at 343, 346, 597 N.W.2d 15 ( KELLY , J., dissenting). Given that "[o]ne-in-four parents living with a child in the United States today are unmarried," and that more than 24 million children in this county now live with an unmarried parent, conditioning custodial rights on marriage serves no legitimate interests, particularly those of the involved children. Livingston, The Changing Profile of Unmarried Parents , Pew Research Center, April 25, 2018, available at < https://www.pewresearch.org/socialtrends/2018/04/25/the-changing-profile-of-unmarried-parents/> (accessed March 15, 2021) [https://perma.cc/8YCK-BLG5]. As Justice KELLY presciently observed, "when child custody or visitation is at issue, the Legislature has decreed that the overriding concern is not the ultimate preservation by the state of the institution of marriage. It is, instead, the attainment of the best interests of the children." Van , 460 Mich. at 346, 597 N.W.2d 15 ( KELLY , J., dissenting).

Applying the equitable and due-process principles described in a century of Supreme Court jurisprudence regarding parenthood and families, I conclude that unmarried parents in same-sex relationships who do not avail themselves of the sophisticated reproductive technology used by these parties should nevertheless be considered "natural parents" under Michigan law. Matthews and LeFever were able to afford a technology that provided both of them with a biological connection to their child. Two men in a committed but unmarried same-sex relationship would not be able to avail themselves of that option, and for some lesbian couples, shared biology may also be impossible.

"[B]iological relationships are not the exclusive determination of the existence of a family.... No one

[336 Mich.App. 687]

would seriously dispute that a deeply loving and interdependent relationship between an adult and a child in his or her care may exist even in the absence of blood relationship." Smith v. Org. of Foster Families for Equality & Reform , 431 U.S. 816, 843-844, 97 S. Ct. 2094, 53 L. Ed. 2d 14 (1977). See also Stanley v. Illinois , 405 U.S. 645, 652, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972) (declaring that an unmarried father's "interest in retaining

[971 N.W.2d 692]

custody of his children is cognizable and substantial"). Matthews and LeFever share a liberty interest in the twins created by both biology and an established parental relationship. I suggest that Van ’s logic has been undermined by the GPA and the ROPA, which opens the door to parental rights for unmarried fathers. Due-process and equal-protection principles similarly open the door to parental rights for unmarried, same-sex parents to enjoy the rights and obligations of parenthood.