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One big happy family? Not exactly. On Friday — the 13th, in fact — San Jose’s Sixth District Court of Appeal affirmed that Robert B. and Susan B. are the parents of 2-year-old Daniel B. The only problem is that Robert and Susan aren’t husband and wife, never have been and never want to be. They’re two strangers thrown together in a wacky predicament produced by a Santa Clara County fertility clinic’s big error. You see, Susan was mistakenly implanted with an embryo meant for Robert and his wife, even though Susan had made it quite clear that she wanted anonymously donated ova and sperm to avoid just such a legal web, and despite the desires of Robert and his wife, Denise B. that the embryos produced for them would go to no one else. Yikes! According to the ruling published late Friday in Robert B. v. Susan B., H024926, the situation began in May 2000, when Robert and Denise contracted with an anonymous ovum donor for fertilization with Robert’s sperm. Susan, a single woman, went to the same fertility clinic to obtain genetic material from “two strangers who would contractually sign their rights” so that “there would be no paternity case against her, ever.” Unfortunately, the clinic botched it, and implanted three of the 13 embryos produced for Robert and his wife into Susan. In February 2001, 10 days apart, Susan gave birth to Daniel, and Denise bore Madeline, Daniel’s genetic sister. Once the error was disclosed, Robert filed a paternity action and after genetic testing, was declared Daniel’s father. Susan challenged that finding, saying Robert should be viewed as nothing more than a sperm donor, while Robert’s wife, Denise, fought a court order that said she had no standing to sue because she is not biologically related to Daniel. Santa Clara County Superior Court Judge Dolores Carr rejected both Susan’s and Denise’s arguments, and the Sixth District on Friday affirmed. “In order to be a donor . . . a man must provide semen to a physician for the purpose of artificially inseminating ‘a woman other than the donor’s wife,’” Justice Franklin Elia wrote. “It is uncontested that Robert did not provide his semen for the purpose of inseminating anyone other than Denise.” Denise’s claim — that Susan “colluded” with the fertility clinic to obtain the embryo and that Denise was the “intended” mother — also failed. “The concept of ‘intended mother’ is employed only as a tie-breaker when two women have equal claims by ‘genetic consanguinity’ and childbirth,” Elia wrote. “There is no tie here, however, because Denise has neither a gestational nor a genetic relationship to Daniel, whereas Susan does.” Under California law, the court held, there can be only one natural mother. Justices Conrad Rushing and Nathan Mihara concurred. Chalk this one up as a 21st-century family.

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