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In re Parentage of J.M.K.9/15/2005
Concurring: James Johnson, Bobbe J Bridge, Charles W. Johnson, Gerry L Alexander Richard B. Sanders, Susan Owens, Tom Chambers, Mary Fairhurst
En Banc
Petitioner Teresa Brock challenges the Court of Appeals' decision reversing the trial court's summary judgment determining the paternity of her two boys. Michael Kepl, the biological father, signed a paternity affidavit for the older child but not for the younger child. The trial court determined that the biological father was the legal (natural) father for both boys. The Court of Appeals reversed, agreeing with the biological father that, as a matter of law, the former artificial insemination statute shielded him from legal fatherhood status with regard to both boys. At issue is whether, under former parentage statutes, a biological father is the legal father of two boys conceived by means of assisted reproductive technology by a woman to whom the man was not married. We hold that Kepl is the legal father for both boys and affirm the trial court's summary judgment determination of paternity.
FACTS
Michael Kepl, the respondent, had a long-term romantic relationship with Teresa Brock, the petitioner, while he was married to another woman. Brock was not married during her relationship with Kepl. The parties met in the late 1980s at work and shortly thereafter began a sexual relationship that continued for approximately one year, ending in 1990 or 1991. Kepl's wife gave birth to his daughter, AK, in 1991. The parties renewed their sexual relationship in the early- to mid-1990s (1992-1994) which lasted nearly 10 years. The parties dispute whether their sexual relationship ended by January or March 2001.
In 1995, the parties began to try actively to conceive a child. The parties first had unprotected sexual intercourse. Brock then sought help from doctors and fertility clinics in Tacoma and Seattle. Brock used fertility drugs and the parties timed intercourse. These processes were unsuccessful. Brock then asked Kepl to donate sperm which he did multiple times. Brock then underwent multiple artificial insemination procedures using Kepl's sperm when the parties were not able to time intercourse. Although the parties at times inaccurately refer to the fertility process as 'artificial insemination,' the record indicates that Brock eventually conceived her children using in vitro fertilization, a type of assisted reproduction involving the implantation of preembryos in Brock created with Kepl's sperm. Clerk's Papers (CP) at 30, 67, 147, 196; Report of Proceedings (RP) at 20-21 (May 21, 2002); RP at 13 (Aug. 27, 2001).
Currently, seven frozen preembryos owned by Kepl and Brock remain at a fertility clinic in Seattle.
Brock gave birth to her first son, JMK, on December 30, 1998. Apparently, Brock was induced a week earlier at Kepl's request so that he could attend the birth given his other commitments. When the first inducement was not successful, Brock was induced again and gave birth approximately one week later. Kepl was present at the hospital the day she gave birth and Kepl was the first person other than hospital staff to hold JMK.
Photographs in the record show Kepl at the hospital holding JMK and with Brock. Kepl gave Brock flowers and cards, including messages of 'It's a Boy - Finally!' and 'Bunches of love to you {Brock} and our bundle of joy' with Kepl signing with both his first name and as 'Dad.' CP at 155-59. At the hospital, Kepl completed and signed a paternity affidavit with Brock and Kepl's name was placed on JMK's birth certificate. A number of Brock's friends were present in the hospital room when Kepl and Brock completed and
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