Contracts
Jun. 15, 2002
A Contract Doesn't Make a Father
SAN FRANCISCO - A construction worker who believed a contract could convey parenthood has won an award against a fertility clinic after a unique trial that combined the disparate rules of family and contract law.
In a judgment entered Wednesday in San Francisco Superior Court, Raymond Dunkin, an East Bay man who thought he became a father by virtue of clinic paperwork, is to receive $50,000 for the emotional distress he suffered when he learned such a thing was impossible.
Plaintiffs attorney Richard J. Simons said appellate court justices and jurors used Dunkin's lawsuit to comment on the rules governing nontraditional families.
"This verdict says to me that these for-profit clinics are playing with people's lives," said Simons, a partner at Hayward's Furtado, Jaspovice & Simons.
"They are in a position of superior knowledge, and they need to pay attention to the effect of their actions in creating these new, nontraditional families."
Defense attorney Robert Lynch, of San Francisco's Lynch Gilardi & Grummer, said the decision is of no legal import, although the facts of the case were unique. Other nonparents have lost custody suits over artificially conceived children before, but Dunkin's claim was novel because he sought money, not custody.
Dunkin was not married to nurse Lisa Boskey, but the couple lived together in El Dorado County. Wanting a baby but unable to conceive due to his testicular cancer, they visited one of the largest fertility clinics in the country: Pacific Fertility Medical Center.
Once there, Boskey and Dunkin signed a contract reading: "We, and each of us, acknowledge our obligation to care for and support and educate and otherwise treat and consider any child born as the result of such artificial insemination in all respects as though it were our natural child."
They also agreed that neither party would "allege in any proceeding that the child or children is other than legitimate, and the male partner and female partner acknowledge that the child shall be the lawful child of both the mother and male partner, and that neither of them shall assert a contrary position in any subsequent proceeding."
Through sperm from an anonymous donor, Boskey gave birth to Marisa Rae in April 1996. Years later, Dunkin's relationship with Boskey fell apart and she left the state. He went to court to fight for custody, but was surprised to hear a judge tell him he wasn't the youngster's legal father.
He then filed a lawsuit, claiming Boskey breached a contract provided by the clinic. And he says the clinic was professionally negligent for telling him the contract was enforceable. Dunkin v. Pacific Fertility Medical Center, 999768
Boskey took the case to the First District Court of Appeal, where the justices considered for the first time whether someone could recover damages for a broken promise of parenthood. The court decided that the contract couldn't grant parental rights, but it was enforceable between the two people.
The court allowed Dunkin to recover restitution damages from Boskey. "It was the first time a surrogacy agreement, where the two partners agreed to raise this child as their own, was viewed to be enforceable at all," Simon said.
Boskey later declared bankruptcy, however, and the fertility clinic was the sole defendant at trial. At trial, Lynch argued that the couple misrepresented themselves as being married, and so the clinic handed them a form designed for married couples.
Superior Court Judge Alex Saldamando limited the award to emotional damages, and wouldn't allow any damages for loss of consortium. But Lynch said that he thought jurors didn't comprehend the difference.
The jury returned its verdict on May 23, saying that the fertility clinic was negligent. They awarded Dunkin $50,000 for "the shock of learning he is not the parent and the emotional distress of going through contested custody proceeding that he lost," Simons said.
Simons said that the makeup of the jury didn't help him, as two jurors were lawyers. Both voted against him.
Tyler Cunningham
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