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Court of Appeal:
Father May Seek to Recover Share of IVF Fees From Mother as ‘Pregnancy’ Expense
Opinion Says Father May Be Entitled to Reimbursement as Law Does Not Preclude Repayment for Expenses Incurred Before Parentage Action Was Filed
By a MetNews Staff Writer
Div. One of the Fourth District Court of Appeal held Friday that a father of a child conceived using in vitro fertilization may request that the mother pay her share of the costs of the procedure as a “pregnancy” expense under a Family Code provision authorizing orders directing a parent to pay the reasonable costs of gestation.
The question arose after Krystal Mamer filed a petition against David Weingarten to determine parental relationship after the birth of their child. The two were never married but agreed to conceive a child via IVF using Weingarten’s sperm, a donor’s egg, and Mamer’s uterus and to share the costs of the procedure, which totaled $55,635.
Weingarten voluntarily paid the full amount when Mamer said she couldn’t cover her share. Before parentage had been determined, Weingarten filed a request for an order directing Mamer to pay her half of the expenses under Family Code §7637, a provision of the Uniform Parentage Act (“UPA”) which provides that a court may “direct the parent to pay the reasonable expenses of the mother’s pregnancy and confinement.”
Mamer opposed the request, saying that the statute does not authorize a court to order a mother to pay a father for any expenses associated with pregnancy.
Riverside Superior Court Judge Sean P. Lafferty denied Weingarten’s request, ruling that he had no authority under the section to order reimbursement of expenses incurred before the parentage action was filed. Lafferty later found that Mamer and Weingarten were the parents of the child in question.
Justice Joan K. Irion authored the opinion, joined in by Acting Presiding Justice Richard D. Huffman and Justice Jose S. Castillo, reversing the order and remanding for the family court to rule on the merits of the request.
Pointing to scenarios in which a mother might be deprived of support if Lafferty’s interpretation of the statute was correct, Irion said “[e]xcepting pregnancy expenses paid before a parentage action is filed from those that Family Code section 7637 authorizes a court to order a parent to pay would frustrate the purpose of the UPA and would produce results unintended by the Legislature.”
Pregnancy Expense
Addressing whether the costs could be viewed as “pregnancy” expenses, Irion wrote:
“Where, as here, a child is conceived through IVF, the costs of the procedure qualify as ‘reasonable expenses of the mother’s pregnancy’ under the statute. Such costs were necessarily and voluntarily incurred to create from Weingarten’s sperm and a third party’s egg a zygote that was later implanted in Mamer’s uterus with the objective of full-term development….[T]he family court determined Mamer is a ‘parent’…in its judgment on the petition she filed under the [Uniform Parentage Act]. That judgment ‘is determinative for all purposes’ of the action. ”
She continued:
“The family court erred by interpreting the statute as not permitting it to order Mamer to reimburse Weingarten for one-half of the IVF costs because he paid them before she filed the parentage action….Family Code section 7637 does not except from the court’s power to order payment of pregnancy expenses those incurred before a parentage action has been filed….Where, as here, the Legislature has not created an exception, a court may not insert one into the statute.”
Legislative Intent
Looking to the legislative intent behind the UPA, she pointed out, in a footnote, that, when originally enacted in 1992, §7637 provided that “[t]he judgment or order may direct the father to pay the reasonable expenses of the mother’s pregnancy and confinement” but the language was amended to change “father” to “parent” in 2013.
Concluding that the court’s interpretation is in line with the Legislative intent behind the statute, Irion said:
“In enacting the UPA, ‘the Legislature recognized the value of having two parents, rather than one, as a source of both emotional and financial and support’ for a child….The parents of a minor child ‘have an equal responsibility to support their child.’….Payment of expenses of the mother’s pregnancy, which section 7637 expressly authorizes a court to direct a parent to pay in a UPA action, is part of both parents’ support obligation….Under the family court’s interpretation of the statute, the father could escape that obligation in most parentage actions, which, based on our experience and review of the published case law, are filed by the mother after the child is born.”
The jurist added:
“The [family] court’s interpretation also would deny recovery of pregnancy expenses when it might be needed most. For example, a single parent who incurred substantial medical expenses due to serious complications of an unplanned pregnancy and was unable to identify or locate the other parent and commence a parentage action until after the birth of the child could not recover those expenses from the other parent. Recovery would also be unavailable in the situation where a single parent relied on a romantic partner’s promises of financial support to conceive a child through an expensive assisted reproduction procedure using the partner’s gametes and was jilted by the partner after the child was carried to term.”
She declared that “[w]e…conclude Family Code section 7637 authorized the court to direct Mamer to pay IVF costs.”
Agreement to Compensate
Irion noted that Lafferty also cited Family Code §3951(a) as support for the denial of Weingarten’s request. The section provides that “[a] parent is not bound to compensate the other parent, or a relative, for the voluntary support of the parent’s child, without an agreement for compensation.”
Pointing out that “Weingarten claimed in his reimbursement request that he and Mamer agreed to share the IVF costs equally” and that “Mamer did not deny this in her responsive declaration,” she said that the petitioner was not prevented by 3951(a) from seeking repayment.
However, she commented:
“Our conclusion that Family Code section 7637 authorizes a court to direct a parent to pay expenses of pregnancy, including IVF costs, that were incurred before the parentage action was filed does not mean the statute requires a court [to] do so….Having ruled it had no authority to order Mamer to pay any of the IVF costs because Weingarten had paid them all before she filed the parentage action, the family court did not exercise its discretionary authority.”
She commented:
“For the guidance of the family court on remand, we note that in exercising its discretion on whether or not to direct Mamer to pay a portion of the IVF costs, the court should consider the policy of the UPA that both parents contribute to the support of their child…, the parents’ incomes or earning capacities…, their agreement concerning payment of the IVF costs…, the reasonableness of those costs…, and any other factors relevant to the reimbursement request. We express no opinion on how the court should ultimately exercise its discretion.”
The case is Mamer v. Weingarten, D084258.
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