Facts: The
parties were married in Boston on October 4, 1991 and separated in November of
2000. They had unsuccessfully attempted to have children since 1992 and when
they separated, were on a waiting list for donor eggs to pair with donor sperm
for an attempt at in vitro fertilization (IVF). In November of 2001, donor eggs
became available and the wife sought the husband's consent for Boston IVF, Inc.
to begin the IVF process. The parties signed a written agreement on December
20, 2001 (2001 agreement). The agreement provided that the husband gave his
consent for the wife's fertility treatment, that he would recognize any
offspring which resulted from the treatment, that the husband would not have
any financial obligations with regards to the treatment or its results, and
that the wife would not at any time ask or sue for any other financial
obligation regarding the treatment or its results.
The husband agreed to execute the 2001 agreement in exchange for his wife's continued support of his citizenship application. Accordingly, the court found that at the deterioration of the marriage, the wife used her sponsorship of the husband's citizenship application to lever her own interests. Prior to each round of IVF, the husband consented, noting next to his signature on each form that his consent was limited by the 2001 agreement. The wife told the husband that Boston IVF would not accept his consent forms with the notations and the he must sign the forms with them, assuring him that she would never seek child support. On November 13, 2002, he signed the final consent form, without the limitation, for the procedure that resulted in a viable pregnancy and birth of twins. When the husband signed the last form, he had not read it and signed it in the parking lot of Boston IVF.
Procedural History: The Probate and Family Court ordered the
husband to pay child support for the twin minor children, holding that he
consented to the artificial insemination of his wife. The judge held that since
the husband gave consent to the wife's impregnation, paternity was consequently
established. The husband appealed, arguing that he consented to the wife's IVF
subject to the terms of the agreement and thus consent could not be established
under G.L. c. 46, § 4B. Second, the husband argued that his consent was
voidable because it was given under duress, given that his consent was
motivated by his wife's threat that she would withdraw her support for his
“green card” application. Lastly, the husband argued that his signature on the
final consent form was forged. Further, the husband contended that even if he
was liable for child support, the judge miscalculated the wife's income, and
therefore the amount that the husband was ordered to pay should be reduced.
Issue: Whether
the husband consented within the meaning of G.L. c. 46, § 4B thereby making him
responsible for financial support of the twins?
G.L. c. 46, §
4B provides that “[a]ny child born to a married woman as a result of [IVF] with
the consent of her husband, shall be considered the legitimate child of the
mother and such husband.” The court held that, the volitional act of sexual
intercourse is equivalent to the volitional act of signing a consent to IVF. In
both cases, the intent of the putative father toward parental status plays no
role. His volitional actions resulted in the creation of a child, and the law
will attach parental responsibilities as a result. When a husband consents to
an IVF procedure, knowing that a child may result, parental status attaches.
The court declined to address the
husband's duress or fraud with regard to the wife's alleged inducement of the
husband to sign the 2010 agreement by threatening to withdraw her support for
his citizenship. The court did not address these arguments because they had not
been properly briefed due to his failure to outline the legal standard for
duress or provide sufficient factual predicate to assist in evaluating his
claim.
As to the husband's claim that
the wife forged his signature, the judge did not credit the expert who
testified in support of this claim and the court declined to disturb the
judge's finding that the expert testimony was not credible.
Lastly, the court found no error
in the judge's calculation of the wife's income. The judge, within her
discretion, relied upon the wife's Federal tax returns and calculated the
amount due to her in support. (MW)
