FROM THE FAMILY COURT OF THE FIRST CIRCUIT (CAAP-16-0000837;
FC-P NO. 16-1-6009)
Rebecca A. Copeland for petitioner-appellant LC
C. Renn, pro hac vice, and Christopher D. Thomas for
J. Wadsworth for amicus curiae State of Hawai'i
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON,
OPINION OF THE COURT EXCEPT AS TO PART III(B) AND
OPINION AS TO PART III(B) BY NAKAYAMA, J., IN WHICH
RECKTENWALD, C.J., JOINS
Uniform Parentage Act (UPA) was adopted by the Hawai'i
State Legislature in 1975 to "provide substantive legal
equality for all children regardless of the marital status of
their parents." H. Stand. Comm. Rep. No. 190, in 1975
House Journal, at 1019. To that end, the UPA presumes legal
paternity in certain circumstances. One such presumption of
paternity is the marital presumption, which presumes that a
man is the natural father of a child when he and the
child's mother are married to each other and the child is
born during the marriage. The issue in this case is whether
this presumption similarly applies in determining whether a
woman married to the child's natural mother is the parent
of that child.
LC sought a divorce from her wife Respondent-Appellee MG in
the Family Court of the First Circuit (family court) shortly
after a child was born to MG through an artificial
insemination procedure. While LC and MG were legally married
at the time of the child's birth, LC is not biologically
related to the child. After the child was born, LC
subsequently sought an order in the family court to
disestablish paternity. The family court denied LCs request,
determining that under the UPA and Hawaii's Marriage
Equality Act (MEA), LC was the child's legal parent. LC
appealed, and the case was transferred to this court from the
Intermediate Court of Appeals.
reasons discussed below, we first hold that both the UPA and
the MEA demonstrate that the UPA's marital presumption of
paternity applies equally to both men and women. Therefore,
because LC and MG were legally married at the time that the
child was born, LC is presumed to be the legal mother of the
child. Second, we hold that LC did not rebut the presumption
we conclude that LC is the legal parent of the child, and
affirm the family court's November 1, 2016 Decision and
Order denying her request to disestablish paternity.
MG first met in 2010, and began a relationship in 2011. At
that time, LC was a student at the Naval Academy in
Annapolis, Maryland and MG lived in Silver Spring, Maryland.
Also during that time, LC and MG began to discuss the
possibility of having a child together. On October, 13, 2013,
LC and MG were legally married in Washington, D.C. The day
after, both parties visited Shady Grove Fertility
Reproductive Science Center (Shady Grove) in Rockville,
Maryland. There, they both signed Shady Grove's
"Ovulation Induction, Monitoring and/or Insemination
Treatment" form and a "Consent to Accept Donated
Sperm from Anonymous Donor." The consent form read in
I/We, [MG] ("Sperm Recipient") and [LC]
("Recipient Partner", if applicable) each hereby
jointly and individually elect to utilize donor sperm of an
anonymous donor recruited by a Sperm Bank ("Donor")
which may be used as part of my/our assisted reproductive
technology treatments ....
I have read the "Information Packet for Use of Donor
Sperm" as well as this Consent document in its entirety
and have had ample time to reach my/our decision free from
pressure and coercion, and agree to proceed with my/our
participation in the use of donor sperm as stated above.
parties decided that MG should carry their first child,
because she was older and LC was currently serving in the
parties relocated to O'ahu, Hawai'i pursuant to LC s
military orders and assignment in October 2014. At that time,
MG was not employed, and LC financially supported the couple.
December 2014, LC and MG jointly attended an appointment at
the Fertility Institute of Hawai'i (FIH), met with a
physician's assistant, and toured the facility.
January 2015, LC deployed overseas and MG remained on
O'ahu. While LC was deployed, she continued to
communicate with MG regarding MG's plans to become
pregnant. On February 23, 2015, MG sent a text message to LC:
I do have to tell you something... I'm so worried about
IUI [intrauterine insemination]... I have been checking the
PO box every single day waiting for my refund and nothing! My
menses is here and I'm supposed to order out [sic] vial
on Monday morning. I'm so upset and depressed be I
don't have the extra money right now. . .
next day, MG texted LC that" it looks like everything is
all good. I start clomid tonight and come back in a week. And
I'm so happy that I do have Atime' to order our
vial!" LC responded, "I'm glad everything went
February 25, 2015, LC (still overseas) and MG discussed their
relationship through text messages. When MG asked whether LC
was having second thoughts about having a child, LC responded
that she "want[ed] to make sure we are truly good before
we start a family," and "want[ed] a child more than
anything but [wanted] them to have parents that adore each
other as well as them." MG asked LC whether she was
"backing out." LC responded, "What are you
talking about backing out? I have always wanted a
child[.]" LC stated that she was "concerned about
us. I want a loving family that respects each other[.]"
The text message exchange ended when MG responded:
[MG:] The way (from our previous convos), I'd stres [sic]
taking the pills for he [sic] past few days per doctor's
[MG:] I have been taking the pills since Monday to prepare [
[MG:] I forgot to tell you that.
next day, LC responded, "K @ pills."
March 2, 2015, a cryobank sent a sperm sample to FIH and
billed it to MG. After an ultrasound appointment, MG texted
LC about the results of the ultrasound, and stated that FIH
would "call [her] later [that day] to let [her] know if
we can get IUI tomorrow or Wednesday." After several
other texts were sent by MG, LC responded, "Hi honey.
Ok. [Talk to you] after my flight. I love you[.]"
March 4, 2015, MG signed FIH's "Consent for
Intrauterine Insemination." Because LC was overseas, she
did not sign the consent form. The IUI procedure also took
place on March 4, 2015.
March 19, 2015, MG informed LC via text message that she was
pregnant. Five hours later, LC responded, "I'sa
pregnant!! I love you baby!!! [. . .] [Good morning] honey
that's great news to awaken to! [. . .] I get to rub your
tummy and feel our baby[.]" When MG asked LC when they
should tell people about the pregnancy, LC responded,
"You tell me when. I'm telling my mom and brother
whenever we do[.]"
Mother's Day 2015, while LC was still deployed, she wrote
a "Future Mother's Day Card" to MG. Enclosed in
the card was a note to "The Future Mother" from
"The Future Momma/Papa." The note also contained a
poem which referenced MG's pregnancy and stated that
"[y]ou will cry, you will smile, you will look into our
child[']s eyes, and w§_ will love you through it
all." (Emphasis in original.) The note was signed by LC
and after the signature, LC further wrote "I will always
be here for our family!" Similarly, on June 8, 2015, LC
addressed a postcard to "[MG] & Future
Son/Daughter," which stated that LC had gotten MG
"a spa kit to let [her] pamper [herself] and for my
future child I bought you the softest/coolest Iceland bear I
could find. I love you both! Hope you enjoy your gifts!"
returned to Hawai'i in September 2015, she attended both
an ultrasound appointment and a lamaze class with MG.
October 7, 2015, LC filed a motion for divorce from MG in the
family court. On November 11, 2015, MG gave birth to the
child at Castle Medical Center on O'ahu. The child's
birth certificate lists MG as the "mother" and LC
as the "co-parent". At the time that the child was
born, LC and MG were not legally divorced; divorce
proceedings were pending.
January 11, 2016, LC sought an order in the family court to
disestablish parentage. LC also submitted a declaration with
her petition that stated that she "did not sign any
documents stating that she consented to the alleged in
vitro fertilization that lead [sic] to the
pregnancy," that the child born to MG was not hers,
"genetically or otherwise," and that she
"never held [the] child out to be her own."
(Emphasis in original).
trial, MG first called two witnesses to testify as to LC s
involvement in MG's medical appointments on O'ahu.
First, Robin Washowsky (Washowsky), the business manager of
FIH, testified about MG's medical records and LCs consent
to MG's IUI procedure. On cross-examination, after being
asked to confirm that there is a line for a partner's
initials on the "Consent to Receive Cryopreserved
Sperm" form, Washowsky was asked how the absence of a
spouse's signature on a consent form would affect the
patient's procedure. Washowsky responded that "[i]f
there's a spouse here, we can have them sign. But in the
absence of a spouse, we would still go through with the
procedure." Washowsky further testified that there were
no signatures or initials from LC anywhere in MG's FIH
medical file. Nevertheless, Washowsky testified on redirect
examination that if FIH received a withdrawal of consent to
an artificial insemination procedure, the clinic would have a
duty to inform the patient of that withdrawal. Washowsky
further stated that there was no evidence in MG's medical
record that MG was notified of any withdrawal of consent.
Emilie Stickley (Dr. Stickley), an OB/GYN at Pali Women's
Health Center (PWHC), also testified. Dr. Stickley testified
that LC attended a July 2015 medical appointment via video
conference with MG and herself. Regarding the topics
discussed during the appointment, Dr. Stickley stated that
neither LC nor MG expressed to her that they no longer wanted
to go through with the pregnancy. After the July 2015
appointment, Dr. Stickley did not recall any further contact
testified. On direct examination, when asked whether she
received any documents from FIH before the birth of the child
indicating that LC was trying to withdraw consent, MG
responded "no." However, when asked on
cross-examination whether she emailed LC copies of the
consent to receive sperm that she herself initialed and
signed, MG also testified that she did not.
second day of trial, LC testified. LC first testified that
she had no involvement in using FIH or choosing a sperm
donor. While LC admitted that she and MG discussed the
possibility that MG become pregnant by assisted reproduction,
LC also testified that she told MG "several times"
beginning in March 2014 that she did not want to go forward
with assisted reproduction. LC specifically testified:
And before we left - before I left in January , for our
anniversary we had this big argument where [MG] said that we
should not have children, and I agreed. And then she brought
it back up while I was on deployment, and I specifically
called her and told her this was not the right time as well
as - she hung up, and that's how the whole text message
chain started, where again [. . .] I stated that this was not
the right time for us to - to have a child.
believed that her text to MG, which read, "I want to
make sure that we are truly good before we start a
family" and the following exchange,
"specifically" demonstrated that LC did not want to
go forward with the pregnancy.
explained that when she received MG's texts about taking
Clomid pills, she knew that because she was eight thousand
miles away, there "was nothing [she could] do" to
stop MG from taking them. Therefore, LC testified that she
just responded "K at pills." LC also stated that it
was her understanding that MG was taking the pills "to
get ready for the process." LC later testified that when
MG sent the text telling her that she was taking Clomid
pills, she "called [MG] immediately and told her to --
to pause." LC stated that this was the second time she
told MG to stop taking Clomid.
regarding MG's "I'm pregnant" text and LCs
response, LC testified that she felt there was nothing she
could do to stop MG's pregnancy:
[LC'S COUNSEL:] What did you mean by "our
baby"? What's going through your mind when
[. - - - ]
[LC:] Oh I believe it was in - so March. So again, after [MG]
had already done the IUI and it's confirmed that she is
pregnant - I mean, like, at this point there's absolutely
nothing that I knew at that time that I can do. [. . .] So I
mean, I'm stuck, and she's my wife. So I - I guess
it's "our baby."
[LC S COUNSEL: ] I see.
So did you ever tell your mom and brother that - that you
were having a baby with - with [MG] or that [MG's] having
a baby for you?
[LC:] I - I told my mother and brother that despite my
wishes, [MG] is pregnant.
respect to the postcard to "[MG] & Future
Son/Daughter," LC first denied that she had ever sent
the postcard. Instead, LC testified that the postcard, along
with the spa kit, was actually in a box of belongings that
remained in LCs possession until she returned from
deployment. LC testified that she only gave MG these items
when she returned home. Specifically, LC stated:
[LC:] So this is - again, this was part of my journal, and
there were more entries in my journal of me just expressing
everything. [. . .] I've always wanted a child, and I
always thought it would be with [MG]. So I'm just
expressing everything that I want to do, that I want to
actually be able to do. Like - like, she's pregnant, and
if it were mine, like, I would be doing all these things. [.
. . ]
So I'm just, in this point, trying to figure out - like,
hey, this is what I want and, like, you are going to be so
loved, and I'm going to get you the best thing from all
the places of the world that I will ever possibly go. [.
.] So I grabbed - so bears. I grabbed toiletries. I grabbed
as much stuff as I could from this place as well as other
places in the world that I went.
THE COURT: Can I interrupt for a second. I just want to
clarify something. [. . .] [Y]our testimony is that you were
referring to not the child that [MG] was pregnant with, but
possibly a future child you'd have with [MG]?
[LC: ] Yes.
THE COURT: At that point, if I understood your testimony
correctly - your testimony was that you had told [MG],
"Don't go through with this procedure till I'm
THE COURT: And she -- your testimony is that she ignored your
- your statements and went ahead and got pregnant anyway. [.
[LC]: Yes .
[. - - - ]
THE COURT: So can you - can you explain to me why you're
still considering having a child with [MG] in the future?
[LC:] Again, like, this is - this is my wife, and I was
trying to reconcile, like things with her. [. . .] And at
this point in time, I'm like, okay, like, yeah, she's
done all this bad stuff, but [. . .] maybe there's a
chance that we can fix this and everything will be all right,
even despite all of this. But more things happened after this
date that was just - like, "You care nothing about me,
and it's only about you." So yeah, this - this
isn't going to work .
the ultrasound appointment and the lamaze class that she
attended with MG after she returned from deployment, LC
testified that because MG did not have a car, she needed to
take her. Specifically, because MG requested a ride to her
lamaze class, LC testified that she drove her to the class
and accompanied her inside.
LC attempted to enter into evidence two faxes she sent to
Shady Grove and FIH withdrawing consent to an
The fax to Shady Grove is dated January 1, 2014 and LC
testified that it was written and sent to the facility a
couple of weeks after LC and MG returned from their honeymoon
that same month. According to the date stamp on the fax,
Shady Grove received the fax on December 9, 2015 (after the
child was born).
November 1, 2016, the family court entered a decision and
order concluding that a legal parent/child relationship
existed between LC and the child. The family court therefore
denied LC s request for an order that she be disestablished
as legal parent of the child.
order, the family court began by describing what it believed
to be the fundamental issue in this case: "Does a legal
parent/child relationship exist between Petitioner and the
Child?" In order to answer that question, the family
court looked to the UPA, which lists several circumstances in
which a man would presumptively be the "natural
father" of a child. Hawai'i Revised Statutes (HRS)
§ 584-4 (a) (2006). Furthermore, the family court noted
that HRS § 584-21 (2006) provides that in actions to
declare a mother and child relationship, "[i]nsofar as
practicable, the provisions of [the UPA] applicable to the
father and child relationship," i.e. provisions like HRS
§ 584-4 (a), "shall apply."
family court also noted that Hawaii's MEA intended that
"there be no legal distinction between same-sex married
couples and opposite-sex married couples with respect to
marriage [ .]"
these statutory provisions to this case, the family court
first determined that HRS § 584-4(a)(1) presumes that a
man is the natural father of a child if "he and the
child's natural mother are or have been married to each
other and the child is born during the marriage."
Applying that provision in a gender-neutral fashion as
required by HRS § 584-21, the family court determined
that because LC and MG, the child's natural ...