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EN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Court of Appeals of New Mexico
Filed 7/11/2022 11:50 AM
f

Filing Date: July 11, 2022
oe

No. A-1-CA-37878 td ee eo

MAILE SOON,

Petitioner-Appellee,

¥v.

JEANNTNE KRAMMASNN,

Respondent-Appellant.

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Vl

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Gerard J. Lavelle, District Judge

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Thomas C. Montoya
Albuquerque, NM

for Appellee

1St ACLU of NM Foundation
161 Elinor Rushforth, Staff Attomey

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Maureen A. Sanders, Cooperating Attorney
Albuquerque, NM

for Appellant

OPINION

43 ~As part of their divorce proceedings, Maile Soon and Jeannine Kammann

engaged in a protracted dispute over Kammann’s parentage of twin children

conceived via artificial insemination and delivered by Soon during the parties’

marriage. Soon challenged Kammann’s standing to adjudicate parentage under the

New Mexico Uniform Parentage Act (NMUPA), NMSA 1978, §§ 40-11A-101 to -

903 (2009, as amended through 2021), because Kammann was not biologically or

genetically related to the children. Soon also argued that Kammann did not consent

to Soon’s insemination procedure as required to establish parentage under the

NMUPA’s assisted reproduction provisions. The district court ruled in favor of Soon

and adjudicated Kammann not to be a parent of the children.

3 We address two questions presented by Kammann’s appeal: (1) whether

undisputed evidence that Kammann shares no genetic relationship with the children

is sufficient to rebut the statutory presumption of parentage that arises when children

are born during the marriage; and (2) whether the statutory requirements to establish

parentage by consent to assisted reproduction limit the evidence a district court may

consider to only those written records signed for the specific procedure that resulted

in the pregnancy. We conclude that the answer to both questions is no and reverse.

1] BACKGROUND
21-433 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.

Beginning approximately one month before their marriage, Soon underwent the first

of several artificial insemination procedures. She successfully conceived twins in

the summer of 2016. The couple began having troubles in their relationship, and

Soon moved out of their shared home in November 2016. While still pregnant, Soon

filed a petition for divorce on January 12, 2017, along with a motion for a referral to

mediation for custody, visitation, and child support.

{44 Soon gave birth on March 3, 2017. Over the next eighteen months, Soon and

Kammann fought a contentious custody battle over the children. Soon initially

conceded that Kammann was a parent of the children, and the two enacted a child

support and visitation plan. They adhered to the plan for a time, and Kammann paid

Soon biweekly child support until at least September 2018.'

65} Six months after initiating the proceedings, Soon hired a new attorney who

filed a motion to dismiss Kammann’s custody claim for lack of standing. As relevant

to this appeal, Soon argued that Kammann lacked standing to adjudicate parentage

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

September 2018.

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of the children because they were born during the parties’ marriage. See § 40-11A-
204(A) (establishing the presumption of parentage that arises from marriage).
Nevertheless, Soon argued that the marital presumption was conclusively rebutted

because Kammann had no genetic relation to the children.

{6 | Kammann responded that the fact the children were born within the marriage

“in and of itself establishes her basis for standing as an interested party under the
Uniform Parentage Act.” She also maintained that she is a parent of the children
because she consented to the assisted reproduction under Section 40-11A-703
(stating that a person who “consents to assisted reproduction . . . with the intent to
be the parent of a child is a parent of the resulting child”). She concluded that these
facts establish that she “is not only an interested person, but is the presumed parent
by virtue of her legal matriage to [Soon], and has standing to ask for a determination
of parentage, custody and time-sharing” under New Mexico law.

{7} The district court conducted an hour-long evidentiary hearing on Soon’s
motion and found that Kammann did not give birth to the children, was not the
genetic or biological mother of the children, and that the presumption of parentage
based upon the parties’ marriage had been rebutted. However, the court
acknowledged that there was an outstanding issue as to whether Kammann had
consented to the assisted reproduction and ordered that she would have thirty days

to file a counter-petition to establish parentage based on the NMUPA’s assisted

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reproduction provisions. See §§ 40-11A-701 to -707. After Kammann did so, the

witnesses and documentary evidence regarding their multiple attempts to conceive

via artificial insemination. The court delivered its decision on the record four weeks

later. Reasoning that Kammann “had to consent to the assisted reproduction that

resulted in the birth of the children” to establish parentage, the court focused on

whether Kammann had provided a record showing that she consented to the specific

insemination procedure that resulted in conception. The court noted that the parties

had attempted to conceive via artificial insemination several times and while “[t]here

was a general consent filed by the parties early on” and both parties had signed

documents in conjunction with several of the procedures, only Soon had signed the

form for the procedure that was ultimately successful. For that reason, the court

found that Kammann had not provided a signed record that complied with New

Mexico law and concluded she was not a parent of the children. Afterward,

Kammann filed a motion for visitation rights based on a theory of stepparent

visitation, which the court also denied.“ Kammann appeals.

*In the same order, dated December 4, 2018, the district court also granted a

dissolution of marriage.

1} DISCUSSION
2\-48} __K ammann_ challenges two_aspects_of the district_court’s interpretation and
3] application of the NMUPA. First, she contends that the NMUPA contains specific

evidentiary and procedural requirements to rebut a presumption of parentage, and

the district court failed to follow them here. Second, she challenges the district

court’s interpretation of the consent to assisted reproduction requirements, arguing

the court took too narrow a view in requiring a document signed immediately before

the specific insemination that resulted in conception. Resolution of these issues

requires us to interpret the NMUPA.

‘9 “Statutory interpretation is an issue of law, which we review de novo.”

Chatterjee v. King, 2012-NMSC-019, 4 11, 280 P.3d 283 (internal quotation marks

and citation omitted). When reviewing a statute, we seek to give effect to the

Legislature’s intent. /d. In determining legislative intent, “we look first to the plain

language of the statute, giving the words their ordinary meaning, unless the

Legislature indicates a different one was intended.” /d. (alteration, internal quotation

marks, and citation omitted). In addition to the statute’s plain language, we will

consider its history, background, and the broader statutory scheme within which the

language being interpreted rests. /d. 912. We do so to ensure a harmonious

interpretation of statutory language within a given act. /d.

INO

I. The Marriage Presumption

03 We tur

concluding her presumed parentage had been rebutted. Kammann challenges the

district court’s ruling on evidentiary, procedural, and constitutional grounds. She

argues that (1) Soon did not present admissible results of genetic testing as required

by statute to rebut the presumption; (2) by not requiring genetic testing results, the

district court bypassed important procedural aspects of the NMUPA that allow the

court to consider whether genetic testing is appropriate in the first place: and (3) the

genetic testing provision, as applied, violates the Fourteenth Amendment’s Equal

Protection Clause. We agree that evidentiary and procedural errors require reversal

in this case. Consequently, we do not reach the constitutional question. See Allen v.

LeMaster, 2012-NMSC-001, 4 28, 267 P.3d 806 (noting that “[i]t is an enduring

principle of constitutional jurisprudence that courts will avoid deciding

constitutional questions unless required to do so” and that “courts exercise judicial

restraint by deciding cases on the narrowest possible grounds” (internal quotation

marks and citation omitted)); see also Lovelace Med. Ctr. v. Mendez, 1991-NMSC-

002, 9 12, 111 N.M. 336, 805 P.2d 603 (“It is, of course, a well-established principle

of statutory construction that statutes should be construed, if possible, to avoid

constitutional questions.”).

INO

413 Under the NMUPA, a presumption of paternity arises when a child is born

“paternity,” the Legislature made clear that “[p]rovisions of the [NMUPA] relating

to determination of paternity apply to determinations of maternity insofar as

possible.” Section 40-1 1A-106; see Chatterjee, 2012-NMSC-019, 4 20 (discussing

the gender neutrality provision in the prior version of the NMUPA and concluding

the presumptions of paternity apply to women). Accordingly, married persons of any

gender may rely on the marriage presumption to establish standing and a

presumption of parentage. See § 40-11 A-602 (stating that a person whose parentage

of the child is to be adjudicated has standing to maintain a proceeding under the

NMUPA); Griego v. Oliver, 2014-NMSC-003, 4 6, 316 P.3d 865 (recognizing that

“the State of New Mexico is constitutionally required to allow same-gender couples

to marry”); see also Chatterjee, 2012-NMSC-019, § 9 (construing the prior version

of the NMUPA to afford standing to “[a]ny person who is able to establish presumed

natural parenthood”).

2}. An unrebutted presumption of parentage conclusively establishes the parent-

child relationship. See § 40-11A-201(B)(1). In contested cases, a presumption may

only be rebutted by an adjudication pursuant to Article 6 of the NMUPA. Section

40-1 1A-204(B); see also § 40-11A-601 (authorizing civil proceedings in the district

court to adjudicate the parentage of a child). The Legislature specified rules for the

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adjudication that state, in relevant part, “[t]he paternity of a child having a

excluding that man as the father of the child or identifying another man as the father

of the child.” Section 40-11A-631(A) (emphasis added). Read together and in a

gender-neutral fashion, Sections 40-11 A-204 and -631(A) establish that Kammann

is presumed to be a parent of the children by virtue of their birth during her marriage

to Soon.’ This presumption can only be rebutted by the admission of genetic testing

results showing that Kammann has no genetic relation to the children.

413} This brings us to the crux of the parties’ dispute: whether the district court

erred in concluding that the marriage presumption had been rebutted when neither

party sought or offered “admissible results of genetic testing.” Soon relied instead

on Kammann’s admission under oath that she is not the genetic or biological parent

of the children. We must therefore determine whether an admission alone can satisfy

the evidentiary requirement in Section 40-1 1A-631(A).

43 Soon argued below that genetic testing should only be required if there is some

doubt as to whether Kammann was the genetic parent. She maintains on appeal that

“any presumption of parentage due to marriage is indisputably rebutted by evidence

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”

in place of “presumed father.”

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artificial insemination.” She concludes that because there is no dispute that

sufficient to rebut the marriage presumption as a matter of law.

415} Kammann argues that the evidentiary requirement to rebut the marriage

presumption 1s governed by statute and an admission does not satisfy the statute’s

requirement. See § 40-11A-631. Kammann notes that genetics are not necessarily

dispositive of parentage under the NMUPA. Under some circumstances, the district

court may forgo genetic testing and adjudicate the presumed parent to be the parent

of the child. See § 40-11A-608. That procedure, Kammann argues, is triggered by a

genetic testing request and a strict interpretation of the evidentiary requirement is

necessary to protect the rights of the presumptive parent. Based on the NMUPA’s

plain language, history, and purpose, we agree that the evidentiary requirement must

be applied strictly.

{16} We look first to the plain language of the statute as the primary indicator of

legislative intent. Chatterjee, 2012-NMSC-019, 4 11. In Section 40-11A-631, the

Legislature stated that “[t]he district court shall apply the following rules to

adjudicate the [parentage] of a child.” (Emphasis added.) When a child has a

presumed parent, parentage “may be disproved only by admissible results of genetic

testing.” Section 40-1 1TA-631(A) (emphasis added). The Legislature’s use of the

word “only” is restrictive, and a straightforward reading of the evidentiary

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requirement in Section 40-11A-631 1s that genetic testing is the sole type of evidence

4173}, This view finds support in the history of the NMUPA, in how Section 40-

11A-631 functions in conjunction with other provisions in the NMUPA, and in the

overarching public policy goals that animate the NMUPA. Under the prior version

of the NMUPA, our Supreme Court recognized in Chatterjee that biology does not

automatically rebut a presumption of parentage. See 2012-NMSC-019, §f 38-47. In

that case, a woman sought joint custody of a child adopted by her partner during the

course of their long-term domestic relationship. /d. § 1. She alleged that she was a

presumed natural parent of the child under the NMUPA and filed a petition to

establish parentage in the district court. See id. J 2. As an issue of first impression,

our Supreme Court held that the presumptions of paternity set forth in NMSA 1978,

Section 40-11-5 (1997, repealed 2009) operated in a gender-neutral fashion such that

a woman could rely on the paternity presumptions to establish standing and

parentage under the NMUPA. See Chatterjee, 2012-NMSC-019, 49 9, 48-49.

418} In an in-depth analysis that bears on our decision here, the Court considered

the statutory mechanism for rebutting a presumption of parentage. /d. 7] 38-47. The

Court evaluated whether it was appropriate to rebut a presumption of parentage with

evidence that the petitioner was not the biological parent of the child. 7d. The Court

observed that the presumptions arose from a person’s conduct, not a biological

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connection, id. { 15, and rejected the notion that a presumed parent’s admission that

WE za VY GD Wo EE

r she was not the child’s biological paren

See id. J 41-47 (stating that district courts should not determine parentage solely on

the basis of a biological relationship); see also id. § 44 (noting that the Colorado

Parentage Act “does not elevate the presumption of biology over the presumption of

legitimacy and nothing in the statutory provisions provides that an admission by a

man that he is not the child’s biological father conclusively rebuts a parentage

presumption” (text only) (citation omitted)).*

4Soon’s brief cites to this Court’s opinion in Lane v. Lane, 1996-NMCA-023,

410, 121 N.M. 414, 912 P.2d 290, which stated that the marital presumption “was
indisputably rebutted by evidence of [the hJusband’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)).

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fi93 The Court noted that the Legislature had “limited the circumstances for

be rebutted “in an appropriate action.” Chatterjee, 2012-NMSC-019, 9§ 41-42.

However, because the Legislature had not defined what constitutes an “‘appropriate

action,” the Court adopted a variety of factors from other jurisdictions with similar

enactments to guide that determination. See id. J{ 42, 47. These included whether

there was a competing parentage claim by a third party, whether denying the

presumed parent’s claim would leave the child without a second parent, and whether

the presumed parent had “actively participated in causing the children to be

conceived with the understanding that she would raise the children as her own

together with the birth mother.” /d. J§ 42-47 (internal quotation marks and citation

omitted). The Court emphasized the importance of considering the child’s best

interests, id. 9] 43-47, and stated unequivocally that district courts should not

assume a genetic parentage determination is in the best interest of the child. See

id. 446 (noting that determining parentage solely on the basis of a biological

relationship may be detrimental to the child’s welfare by compromising the

continuity of an established relationship).

203} The NMUPA was amended in 2009 and now contains express guidance on

when and how genetics factor into parentage adjudications. The NMUPA sets forth

the general rule that a person excluded as the parent by genetic testing would

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normally be adjudicated not to be the parent of the child. See § 40-11A-631(D). But

presumed parent. See § 40-11 A-608. When a child has a presumed parent, parentage

“may be disproved only by admissible results of genetic testing.” Section 40-11A-

631(A) (emphases added). Importantly, the results of genetic testing are not

admissible to adjudicate parentage unless performed with the consent of both parties

or pursuant to a court order. See § 40-11A-621(C). Under the latter scenario, a party

may file a motion to compel genetic testing, but the Legislature expressly provided

that the district court may deny the motion and adjudicate the presumed parent to be

the parent of the child. See § 40-11A-608(A). That course of action is authorized by

statute if the district court determines by clear and convincing evidence that (1) the

conduct of the mother or the presumed parent estops that party from denying

parentage; and (2) it would be inequitable to disprove the presumed parent’s

relationship with the child. See § 40-11A-608(A), (D).° The district court must also

>Soon briefly mentions that Kammann did not preserve an argument that

Section 40-11 A-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

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consider the best interest of the child based on a nonexhaustive list of nine factors.

continued recognition that genetics do not conclusively rebut a presumption of

parentage. See Chatterjee, 2012-NMSC-019, 4 35-36 (noting that children may

form parent-child bonds with persons other than their genetic parents and that New

Mexico courts have awarded custody to nongenetic parents in some circumstances).

213 Allowing district courts to uphold a parent-child relationship even when a

genetic relationship is absent is in keeping with the dual public policy goals that

animate the NMUPA: the state’s “strong interest in ensuring that a child will be cared

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
nding nding underthe Artic ctandina + dandieate noreantac Cop AN_I1A

standing. Standing under tie ACtTiIS standing to adj Udredale pal cnitage. wee VY FUSLT ES

602; Chatterjee, 2012-NMSC-019, 4 49. The undisputed fact that the children were

born during the parties’ marriage was sufficient to establish Kammann’s standing to
intoin_a nroaceedinge to _adindiecate narentagce Cap § AN-11A_609- § AN_11LA

Matai a preecwuns Ww AU UUEV ate parvlitasre. PCC SN PUTTY ssy Cy ren arity

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 asa parentage adjudication the

Pe Ewso ows © Lo 3 es 5 oe re) EWU OO uyvo fehted am head WOU ST Ts tmiwy

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 cenetic testine nor filed a motion seeking to_-compel cenetic

MEE DOE ES EEO VIVES CDE SES EOE a DEO UE OEE OW AE CO VV per pei ae

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

INO

in their own support.” /d. §] 32-33. As to the state’s interest, the Chatterjee Court

combination and permutation of marriage, method for conception of the child, and

arrangements that intended parents make to have children,” and when that care is

lacking, the responsibility of caring for the child falls to the state. Jd {931-32

(omission, internal quotation marks, and citation omitted). As to the child’s interest,

the Court observed that a “[c]hild’s need for love and support is no less critical

simply because [his or] her second parent also happens to be a woman.” /d. ¥ 34.

Collectively, Sections 40-11A-631(A) and -608 give force to these overarching

goals by allowing district courts to decide in each case whether the genetic

relationship, or lack thereof, should be allowed to rebut a presumption of parentage.

2} The language, history, and purpose of the NMUPA lead us to conclude that

the Legislature intended the evidentiary requirement for rebutting a parentage

presumption to be applied strictly. Consequently, a parentage presumption cannot

be rebutted in the absence of admissible results of genetic testing. Were it otherwise,

parties could circumvent the district court’s authority to deny a motion for genetic

testing by eliciting an admission from the presumed parent that they have no genetic

relationship with the child. In effect, if admissions were allowed to rebut the

presumption in lieu of genetic testing results, then in any case where an admission

is obtained, the lack of a genetic relationship would conclusively rebut a parentage

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presumption, regardless of whether doing so served the best interests of the child.

This is _contrary_to_the intent _expressed_1

undermine the fundamental considerations that underlie a parentage determination.

Therefore, in line with our Supreme Court’s reasoning in Chatterjee, we hold that a

presumed parent’s admission that they are not the genetic parent_of the child is

insufficient to rebut a parentage presumption. See 2012-NMSC-019, {ff 43-47.

23} In this case, because neither party sought or presented genetic testing results,

we reverse the district court’s determination that the marriage presumption has been

rebutted and remand for further proceedings.

II. Assisted Reproduction Provisions

24} Kammann next argues that she produced sufficient evidence to establish

parentage under Sections 40-11 A-201(B)(5) and -704, which provide that the parent-

child relationship is established if Kammann consented to the assisted reproduction

in a signed record. Kammann presented a variety of documents relating to multiple

artificial insemination procedures beginning in August 2015.° The district court

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)

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found that Kammann had not produced a signed consent specifically for the July

concluded Kammann had failed to produce a signed record that complied with the

requirements of the NMUPA, had failed to prove she consented to assisted

reproduction, and was a nota parent of the children. On appeal, Kammann maintains

that her evidence—a signed consent for Soon’s August 2015 insemination procedure

and three other signed forms related to later procedures—was sufficient to satisfy

the statutory requirement. While Kammann frames the matter as a question of

sufficiency of the evidence, the issue presented requires us to determine the scope

of evidence a district court may consider under the NMUPA’s consent requirements.

25} We begin with the statutory provisions that govern parentage by consent to

assisted reproduction. The NMUPA states in Section 40-11A-201(B)(5) that the

parent-child relationship is established by “the [person’s] having consented to

assisted reproduction by a woman pursuant to Article 7 of the [NMUPA] that

resulted in the birth of the child.” In Article 7, the NMUPA sets forth the

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 1s only signed

by Soon.

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consent to the assisted reproduction in a record signed by them before the placement

of the eggs
of the eggs

A-703 A

> Aid ij £ oa ss

person who . . . consents to assisted reproduction as provided in Section 7-704 of the

[NMUPA] with the intent to be the parent of a child is a parent of the resulting

child.”).’

6} The district court construed these provisions to mean that the signed consent

must relate to the specific procedure that resulted in pregnancy and the eventual birth

of the children. That interpretation effectively requires intended parents to sign a

consent document before each placement in cases such as this, where the birth

mother undergoes multiple placements before becoming pregnant. For a number of

reasons, we view this restrictive construction as contrary to the Legislature’s intent.

27 First, the plain language of the NMUPA is not so restrictive. The only time

requirement bearing on the written consent is that it must occur “before the

placement of the eggs, sperm or embryos.” Section 40-11 A-704(A). The NMUPA

does not prohibit district courts from considering consent documents signed by the

parties at any point before the final placement, nor does it expressly require a new

consent before each placement when parties attempt assisted reproduction more than

7Section 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.

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once before they successfully conceive. Rather than focusing on the timing of the

parties’ consent, the NMUPA_ focuses_on the parties’ intent—whether_a_person

2s Nao os BENS GRE ¥ 7 oe en oo

consented to assisted reproduction with the intent to be the parent of the resulting

child. Section 40-11 A-703. Given the absence of other restrictions, the NMUPA

does not prevent consideration of any documents signed by the parties before they

conceive via assisted reproduction, so long as those documents manifest their intent

to be a parent of the resulting child.

gs; The NMUPA also indicates that consent, once given, can remain effective for

an extended period of time. Section 40-11A-706(B) governs the withdrawal of

consent and implicitly recognizes that consent remains effective until it is

withdrawn. See § 40-11A-706(B) (“Unless otherwise agreed in a signed record, the

consent of a woman or man to assisted reproduction may be withdrawn by that

person in a signed record delivered to the other person at any time before placement

of eggs, sperm or embryos if the placement has not occurred within one year after

the consent.”’). As a practical matter, if written consent were required before every

placement, then a person would only be able to withdraw consent in the brief window

of time between signing the consent form for the procedure and the ensuing

performance of the procedure. While it is not entirely outside the realm of possibility

that a person could change their mind in such a narrow window, the more reasonable

view is that parties can manifest their intent and consent to the entire course of

assisted reproduction—whatever it entails and however many attempts are

necessary—until the birthing mother conceives. See Lane, 1996-NMCA-023

{20

EEUU UDG Y La 2s 2s oo SAS OE za ¥ . THATS NEVES te >

(observing that the writing requirement serves a “cautionary purpose” because

“[o}]ne who pauses to sign a document can be expected to give more thought to the

consequences of consent than one who gives consent ina less formal setting”).®

29} Finally, we cannot ignore the practical and public policy implications of

narrowly construing the consent provisions to require a signed document for the

specific procedure that resulted in the pregnancy and birth. Such a formalistic

requirement raises the possibility that a willing and intended parent may fail to

satisfy the legal requirements to establish parentage for want of a single document,

even if there is considerable written evidence to the contrary. What if, for example,

the intended parent was unable to attend the appointment or arrived late, after the

placement? What if the provider does not request a signature for that particular

procedure or misplaces the form? In those circumstances, even if there was written

consent to assisted reproduction in general, the intended parent would not be able to

produce the evidence necessary to establish parentage. On the other side of the coin,

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

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.

INO

to help support the child. E.g., Chatterjee, 2012-NMSC-019, §62 (Bosson, J.,

a result is not only impractical, it 1s in-conflict wit

noc)

public policy underlying the NMUPA. /d. §{§ 32-33. As this Court observed when

construing a similar provision in the prior version of the NMUPA, “when [spouses]

both approve of ... conceiving a child through artificial insemination and both wish

[the nonbirthing spouse] to be treated as the natural [parent], then the [s]tate should

honor that wish.” Lane, 1996-NMCA-023, 4 20.

303 For all of these reasons, we see no justification for limiting proof of consent

to only those documents signed for the specific procedure that results in pregnancy.

As this Court observed in Lane, the requirement of a signed record serves an

evidentiary function, the purpose of which is to “avoid[] disputes regarding whether

consent was actually given.” /d. Like Lane, “[w]e fail to see how the date of the

writing affects the probative value of the writing as evidence of the consent.”

Id. § 22. We reverse the district court’s contrary decision.

313, On remand, the district court must consider whether the parties’ written

evidence establishes Kammann’s consent to assisted reproduction. Because the

Legislature has not prescribed the nature of the writing or any particular form of

words for the consent, and because the purposes of the statute have not changed, the

three factors articulated in Lane continue to provide a helpful framework for

evaluating whether a writing is satisfactory: “if the writing conveys in some manner

that (1) the [nonbirthing spouse] knows of the conception by artificial insemination,

ent] of the chid

&
ee SS

so conceived, and (3) the [birthing spouse] agrees that the fnonbirthing spouse] will

be treated as the lawful [parent] of the child.” fa. 9 21. While the district court’s oral

ruling indicates that at least one of the parties’ exhibits amounted to a general

consent early on, the court did not make a finding on this point, and this Court cannot

NUM. 742,975 P24 355 Cltis a bedrock principle of appellate practice that appellate

courts do not decide the facts in a case”); see also Duke City Lumber Co. v. Terrel,

1973-NMSC-041, 95, 88 NM. 299, 540 P.2d 229 (Tit 1s for the finder of the facts,

and not the appellate courts, to weigh conflictmg evidence and decide where the

12) trath lies.”).

13) CONCLUSION

14323 For the foregoing reasons, the district court’s orders regarding Kamrmann’s
15] parentage are reversed and this matter is remanded for further proceedings consistent

161 with this opmion.

iFiaa =P ES SO ORDERED.
18

1
WE CONCUR:
2
2. Whati
3
J. MILES HANISEE, Chief Judge
4 5
00 : Boca
GERALD E. BACA, Judge
23

July 11, 2022- Maile Soon v. Jeannine Kammann, No. A-1-CA-37878

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