Wednesday, October 30, 2002
Page 1
C.A. Rejects Bid by Couple Caught Up in UCI Fertility Scandal to Determine Relationship With Children
By KENNETH OFGANG, Staff Writer/Appellate Courts
A Northern California couple who received a settlement from UC Irvine after learning that eggs and sperm they donated to the university’s fertility clinic may have been given to another couple cannot sue to determine whether twins born to another couple are actually the plaintiffs’ biological children, the Court of Appeal for this district ruled yesterday.
Rules of evidence and public policy support Los Angeles Superior Court Judge John W. Ouderkirk’s decision to dismiss the suit by Donna Prato-Morrison and Robert Morrison, Justice Miriam Vogel wrote for Div. One.
The couple, both sheriff’s deputies—the court did not say where they were employed—were among several who claimed to have been victims of “egg stealing” in the 1995 scandal that led to the closing of the clinic, the termination of two officials of UCI Medical Center for poor oversight, and the filing of criminal fraud charges against three doctors.
The Morrisons, who hoped to have a child through in vitro fertilization, became patients of the clinic in 1988 but eventually abandoned their efforts to conceive a child through IVF. They expected, they said in their later complaints, that any remaining genetic material would be destroyed.
It was during discovery in their suit against UCI that the Morrisons learned that their genetic material might have been used to enable another patient, identified as Judith Doe, to conceive. Judith Doe gave birth to twin daughters in December 1988.
In 1996, the Morrisons sued Judith Doe and her husband, seeking a determination of the girls’ parentage and asking for custody. They sought blood tests and DNA samples, which the Does did not agree to.
They eventually dropped their bid for custody, but continued to seek visitation rights.
In a footnote, Vogel cited statements by the Does’ lawyer indicating that the Morrisons had hired private investigators to engage in surveillance of the Does and report on the children’s family life and school situation and had threatened that the dispute concerning their parentage would be made known to them. Donna Prato-Morrison, the lawyer said, was “obsessed” with the belief that the girls were her children.
“The Morrisons have never suggested that this description of their conduct is false or exaggerated,” Vogel emphasized.
The Does moved to quash the lawsuit, saying they were “the only parents that Ida and Rose had ever known” and that bringing the Morrisons into their lives would be a “monstrous intrusion.”
In opposition, the Morrisons claimed that Donna Prato-Morrison had standing as a “genetic mother” and submitted a document with her name on it, which they identified as a “donor/recipient list,” along with a declaration by biologist Teri Ord.
Ord said she had “participated” in “transfers of genetic materials obtained by the doctors” at the clinic between 1986 and 1988 and that—according to records, which were not themselves produced and which allegedly had been seized by the FBI—Judith Doe had received eggs from Morrison, resulting in a “twin pregnancy.”
The list and declaration were rejected by the trial judge as hearsay. The business records exception did not apply, the judge said, because the documents did not establish that the biologist had personal knowledge of the facts set forth.
Vogel agreed. A declaration compiled from other documents containing matters outside the personal knowledge of the declarant is not a business record for purposes of the Evidence Code Sec. 1271 exception, the justice said.
Even if those documents did establish a genetic link between the Morrisons and the children, Vogel wrote, it would still be in the children’s interests to dismiss the lawsuit rather than subject them to further testing.
“The Morrisons’ ‘rights’ were vindicated when they accepted an undisclosed amount of money to resolve their lawsuit against [UCI and the doctors]. The rights still at issue are not the Morrisons’ rights. They are the rights of the Does and their twins to be free from the interference of strangers who have no standing to pursue their demands for blood tests or visitation rights, and the Morrisons cannot alter the focus of this issue by characterizing the Does’ rights as mere privacy interests that may, under appropriate circumstances, give way to greater rights.”
The case is Prato-Morrison v. Doe, B151028.
Copyright 2002, Metropolitan News Company