An oral surrogacy agreement is enough to prevent a woman who birthed a child with a gay neighbor through artificial insemination using her own eggs from claiming any parental rights as the child's mother more than seven years after the birth, a state appeals court has ruled.
On March 28, the California Third District Court of Appeal in Sacramento sided with Jeffrey Gerstein, identified as a psychiatrist, in his dispute with Sarah Ann Miles over custody rights to a young girl the pair birthed under a surrogacy arrangement in 2013.
In the ruling, a panel of three appellate justices said a lower court was correct to determine Gerstein's representation concerning the terms of a verbal agreement between the two, which was never put in writing, meant Miles had essentially waived the chance to claim parenting rights over the girl, identified only as E, and the girl should remain in the custody of her father, who is gay.
The court said they agreed it "would not, in fact, be in E.'s best interests to disrupt the status of her single-parent family" and give Miles the legal right to be recognized as the girl's mother and assist in raising the child.
According to court documents, Gerstein and Miles, who are neighbors, reached an oral agreement in 2012 to birth a child.
According to court documents, the terms of the deal allegedly required the child to be solely Gerstein's, with no parental involvement from Miles once the child was weaned from breast milk.
Gerstein, who is gay, allegedly paid Miles $28,000 and Miles artificially inseminated herself using Gerstein's sperm until she became pregnant.
According to court documents, Miles is a nurse and has worked as a birthing doula.
According to court documents, Gerstein raised the child on his own, with no parental involvement or financial support from Miles for seven years.
While Miles would regularly interact with Gerstein and the child, and at times join them for social functions, Miles reportedly was only known to the child as a "friend" for most of that time, known only to the child as "Sarah." Eventually, Gerstein reportedly told the child that Miles was her surrogate, when the child began asking questions concerning the identity of her mother.
However, Gerstein reportedly told the child: "A mommy is someone who takes care of you on a day-to-day basis, which Miles doesn’t do, which is why they called her by her first name."
However, according to court documents, through the years, Miles' opinion of the nature of their relationship changed.
In 2020, amid the Covid pandemic, Miles reportedly accused Gerstein of "rewriting the narrative" of their deal and isolating the child from her, including refusing her requests to come to their house to "hug" E, which was reportedly not a request she had previously made.
In 2021, when E. was seven years old, Miles asked a court to declare she had parental rights over the child. She argued that, since she and the child shared a genetic relationship and she had birthed the child, she should be legally considered the child's mother.
A Sacramento County Superior Court judge denied that request, finding the oral agreement was sufficient to allow Gerstein to maintain sole custody of the child.
Miles was supported on appeal by a brief filed by the National Center for Lesbian Rights and Men Having Babies, which argued that "terminating 'protected parental rights ' based on a 'mere alleged oral agreement, without any meaningful substantive or procedural protections would violate parents' state and federal constitutional rights to both substantive and procedural due process.'"
The appellate justices, however, rejected such constitutional claims.
"... This argument assumes Miles had a fundamental right to parent E. She did not. Moreover, the trial court did not make its decision based on a 'mere alleged oral agreement.' It conducted a trial at which Miles had ample opportunity to cross-examine witnesses who testified there was an oral agreement, and the opportunity to present her own evidence of the terms of the agreement or that there simply was no oral surrogacy agreement. Miles had no state or federal constitutional right to be a parent under these circumstances," they wrote.
Miles has been represented by attorney Stephanie J. Finelli, of Sacramento.
Gerstein was represented by attorneys Robert R. Walmsley and Marlea F. Jarrette, of the firm of Jarrette & Walmsley, of Los Olivos.
The decision was authored by Justice Harry E. Hull Jr. Justices Louis Mauro and Stacy Boulware Eurie concurred.