The slip opinion is the first version of an opinion released by the Chi ef Clerk of the Supreme Court. Once an opinion is selected for publication by the Court, it is assigned a vendor

- neutral citation by the Chief Clerk for compliance with Rule 23

- 112 NMRA, authenticated and formally published. The slip opinion may contain d eviations from the formal authenticated opinion.
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 Opinion Number: _____________ 2 Filing Date: July 11, 2022 3

No. A

- 1

- CA

- 37878 4
MAILE SOON, 5

Petitioner

- Appellee, 6

v. 7
JEANNINE KAMMANN, 8 Respondent

- Appellant. 9

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 10 Gerard J. Lavelle, District Judge 11 Thomas C. Montoya 12 Albuquerque, NM 13 for Appellee 14

ACLU of NM Foundation 15 Elinor Rushforth, Staff Attorney 16 Maureen A. Sanders, Cooperating Attorney 17 Albuquerque, NM 18

for Appellant 19OPINION 1
DUFFY, J udge
. 2

{1} As part of their divorce proceedings, Maile Soon and Jeannine Kammann 3 engaged in a protracted dispute over Kammann’s parentage of twin children 4 conceived via artificial insemination and delivered by Soon during the parties’ 5 marriage. Soon challenged Kamman n’s standing to adjudicate parentage under the 6 New Mexico Uniform Parentage Act (NMUPA) , NMSA 1978, §§ 40

- 11A

- 101 to

- 7 903 (2009 , as amended through 2021 ) , because Kammann was not biologically or 8 geneti cally related to the children . Soon also argued that Kammann did not consent 9 to Soon’s insemination procedure as required to establish parentage under the 10

NMUPA ’s assisted reproduction provisions. The district court ruled in favor of Soon 11

and adjudicated Kammann not to be a parent of the children

. 12

{ 2 } We address two questions presented by Kammann’s appeal : (1) whether 13 undisputed evidence that Kammann shares no genet ic relationship with the children 14 is sufficient to rebut the statutory presumption of parentage that arises when children 15 are born during th e marriage ; and (2) whether the statutory requirements to establish 16 parentage by consent to assisted reproduction limit the evidence a district court may 17

consider to only those written records signed for the specific procedure that resulted 18 in the pregnanc y. We conclude that the answer to both questions is no and reverse

. 192 BACKGROUND 1

{ 3 } Soon and Kammann were married in September 2015. They shared a mutual 2

desire to have children and sought to conceive a child through artificial insemination

. 3 Beginning approximately one month before their marriage, Soon underwent the first 4

of several artificial insemination procedures. She successfully conceived twins in 5

the s ummer of 2016. T he couple began having troubles in their relationship, and 6

Soon moved out of their shared home in November 2016. While still pregnant, Soon 7 filed a petition for divorce on January 12, 2017 , along with a motion for a referral to 8 mediation for custody, visitation, and child suppo rt

. 9

{ 4 } Soon gave birth on M arch 3, 2017

. Over the next eighteen months, Soon and 10

Kammann fought a contentious custody battle over the children

. Soon initially 11 conceded that Kammann was a parent of the children , and the two enacted a child 12 support and visitation plan. The y adhered to the plan for a time , and Kammann paid 13

Soon biweekly child support until at least September 2018. 1 14

{ 5 } Six months after initiating the proceedings , Soon hired a new attorney who 15 filed a motion to dismiss Kammann’s custody claim for lack of standing. As relevant 16 to this appeal, Soon argued that Kammann lacked standing to adjudicate parentage 17

under the NMUPA

. Soon acknowledged that Kamman n was presumed to be a parent 18

1 The district court adjudicated Kammann not to be a parent of the children in September 2018.3 of the children because they were born during the parties’ marriage

. See § 40

- 11A

1 204(A) ( establishing the presumption of parentage that arises from marriage). 2

Nevertheless , Soon argued that the marital presumption was conclusively rebutted 3

because Kammann had no ge netic relation to the children. 4

{ 6 } K ammann responded that the fact the children were born within the marriage 5 “in and of itself establishes her basis for standing as an interested party under the 6 Uniform Parentage Act

. ” She also maintained that she i s a parent of the children 7 because she consented to the assisted reproduction under Section 40

- 11A

- 703 8 (stating that a person who “ consents to assisted reproduction

. . . with the intent to 9 be the parent of a child is a parent of the r esulting child ” ). She concluded that these 10

facts establish that she “is not only an interested person, but is the presumed parent 11 by virtue of her legal marriage to [Soon], and has standing to ask for a determination 12 of parent age, custody and time

- sharing ” under New Mexico law. 13

{ 7 } The district court conducted an hour

- long evidentiary hearing on Soon’s 14

motion and found that Kammann did not g a ve birth to the children , was not the 15 genetic or biological mother of the children, and that the presumption of parentage 16 based upon the parties’ marriage had been rebutted

. However, t he court 17 acknowledged that there was an outstanding issue as to whether Kammann had 18

consented to the assis ted reproduction and ordered that she would have thirty days 19

to file a counter

- petition to establish parentage based on the NMUPA ’s assisted 204 reproduction provisions

. See §§ 40

- 11A

- 701 to

- 707. After Kammann did so , the 1

district court held an other evide ntiary hearing , during which the parties presented 2

witnesses and doc umentary evidence regarding their multiple attempts to conceive 3

via artificial insemination. T he court deliver ed its decision on the record four weeks 4

later. Reasoning that Kammann “had to consent to the assisted reproduction that 5 resulted in the birth of the children ” to establish parentage , the court focused on 6 whether Kammann had provided a record showing that she consented to the specific 7

in s emination procedure that resulted in con c eption. The court noted that the parties 8 had attempted to conceive via artificial insemination several times and while “[t]here 9 was a general consent filed by the parties early on” and both parties had signed 10

documents in conjunction with s everal of the procedures, only Soon had signed the 11 form for the pro cedure that was u ltimately successful. For that reason, the court 12 found that Kammann had not provided a signed record that complied with New 13

Mexico law and concluded she was not a parent of the children

. Afterward, 14 Kammann filed a motion for visitation rights based on a theory of stepparent 15
visitation, which the court also denied. 2 Kammann appeals. 16

2 In the same order, dated December 4, 2018, the district court also gra nted a dissolution of marriage.5 DISCUSSION 1

{ 8 } Kamman n challenges two aspects of the district court’s interpretation and 2 application of the NMUPA . First, she contends that the NMUPA contains specific 3 evidentiary and procedural requirements to rebut a presumption of parentage, and 4

the district court failed to follow them here. Second, she challenges the district 5 court’s interpretation of the consent to assisted reproduction requirements, arguing 6 the court took too narrow a view in requiring a document signed immediately before 7
the specific insemination that re sulted in conception. R esolution of these issues 8 require s us to interpret the NMUPA

. 9

{ 9 } “Statutory interpretation is a n issue of law, which we review de novo. ” 10 Chatterjee v. King , 2012

- NMSC

- 019, ¶ 11, 280 P.3d 283 (internal quotation marks 11 and citation omitted)

. When reviewing a statute, we seek to give effect to the 12 Legislature’s intent. Id. In determining legislative intent, “we look first to the plain 13 language of the statute, giving the words their ordinary meaning, unless the 14 Legislature indicates a different one was intended.” Id. (alteration , internal quotation 15
marks, and citation omitted ). In addition to the statute’s plain language, we will 16

consider its history, background, and the broader statutory scheme within which the 17 language being interpreted rests

. Id. ¶ 12. We do so to ensure a harmonious 18 interpretation of statutory language wit hin a given act

. Id. 196 I. The Marriage Presumption 1

{ 10 } We turn first to Kammann’s argument that the district court erred in 2 concluding her presumed parentage had been rebutted. Kammann challenges the 3 district court’s ruling on evidentiary, procedural, and constitutional grounds

. She 4

argu es that (1) Soon did not present admissible results of genetic testing as required 5 by statute to rebut the presumption; (2) b y not requi r ing genetic testing results , the 6

district court bypassed important procedural aspects of the NMUPA that allow the 7 court to consider whether genetic testing i s appropriate in the first place ; and (3) the 8 genetic testing provision, as applied, violates the Fourteenth Amendment’s E qual 9

P rotection C lause. We agree that evidentiary and procedural errors require reversal 10

in this case

. Consequently, we do not reach the constitutional question. See Allen v. 11

LeMaster , 2012

- NMSC

- 001, ¶ 28, 267 P.3d 806 (noting that “ [i] t is an enduring 12 principle of constitutional jurisprudence that courts will avoid deciding 13 constitutional questions unless required to do so ” and that “courts exercise judicial 14 restraint by deciding cases on the narrowest possible grounds” (internal quotation 15 marks and citation omitted)) ; see also Lovelace Med. Ctr. v. Mendez , 1991

- NMSC

16 002, ¶ 12, 111 N.M. 336, 805 P.2d 603 (“It is, of course, a well

- established principle 17

of statuto ry construction that statutes should be construed, if possible, to avoid 18 constitutional questions.”). 197 { 11 } U nder the NMUPA , a presumption of paternity arises when a child is born 1 during a marriage

. Section 40

- 11A

- 204(A)(1). W hile the NMUPA uses the term 2 “paternity , ” the Legislature made clear that “[p] rovisions of the [NMUPA] relating 3 to determination of paternity apply to determinations of maternity insofar a s 4 possible.” Section 40

- 11A

- 106 ; see Chatterjee , 2012

- NMSC

- 019, ¶ 20 ( discussing 5

the g ender neutrality provision in the prior version of the NMUPA and concluding 6 the presumptions of paternity apply to women ) . Accordingly, m arried persons of any 7 gender may rely on the marriage presumption to establish standing and a 8 presumption of parentage. See § 40

- 11A

- 602 (stating that a person whose parentage 9

of the child is to be adjudicated has standing to maintain a proceeding under the 10

NMUPA ); Griego v. Oliver , 2014

- NMSC

- 003, ¶ 6, 316 P.3d 865 (recognizing that 11 “the State of New Mexico is constitutionally required to allow same

- gender couples 12 to marry”); see also Chatterjee , 2012

- NMSC

- 019, ¶ 9 ( construing the prior version 13

of the NMUPA to afford standing to “[a]ny person who is able to establis h presumed 14 natural parenthood” ). 15

{ 12 } An unrebutted presumption of parentage conclusive ly establishes the parent

16 child relationship

. S ee § 40

- 11A

- 201(B)(1)

. I n contested cases, a presumption may 17 only be rebutted by an adjudication pursuant to Article 6 of the NMUPA . Section 18

40

- 11A

- 204 (B) ; see also § 40

- 11A

- 601 (authorizing civil proceedings in the district 19 court to adjudicate the parentage of a child)

. The Legislature specified rules for the 208 adjudication that state , in relevant part, “ [t] he paternity of a child having a 1 presumed

. . . father may be disproved only by admissible results of genetic testing 2 excluding that man as the father of the child or identi fying another man as the father 3

of the child. ” Section 40

- 11A

- 6 31 (A) ( e mphasis added)

. Read together and in a 4 gender

- neutral fashion, Sections 40

- 11A

- 204 and

- 631(A) establish that Kammann 5 is presumed to be a parent of the children by virtue of their birth during her marriage 6

to Soon

. 3 This presumption can only be rebutted by the admission of genetic testing 7 results showing that Kammann has no genetic relation to the children. 8

{ 13 } This brings us to the crux of the parties’ disput e : whether the district court 9 erred in concluding that the marriage presumption had been rebutted when neither 10 party sought or offered “admissible results of genetic testing

. ” Soon relied instead 11 on Kammann’s admission under oath that she is not the genetic or biological parent 12

of the children. We must therefore determine whether an admission alone can satisfy 13 the evidentiary requirement in Section 40

- 11A

- 631(A)

. 14

{ 14 } Soon argued be low that genetic testing should only be required if there is some 15

doubt as to whether Kammann was the genetic parent

. She maintains on appeal that 16 “any presumption of parentage due to marriage is indisputably rebutted by evidence 17 that a parent cannot be a biological parent of the child at issue, and by the fact of 18

3 Throughout the remainder of this opinion, we use the term “presumed parent” in place of “presumed father.”9 artificial insemination.” She concludes that because there is no dispute that 1 Kammann is not the genetic parent of the children, Kammann’s admission was 2

sufficient to rebut the marriage presumptio n as a matter of law. 3

{ 15 } Kammann argues that the evidentiary requirement to rebut the marriage 4 presumption is governed by statute and an admission does not satisfy the statute’s 5 requirement

. See § 40

- 11A

- 631. Kammann notes that genetics are not necessarily 6 dispositive of parentage under the NMUPA . U nder some circumstances, the district 7
court may forgo genetic testing and adjudicate the presumed parent to be the parent 8

of the child. See § 40

- 11A

- 608. That procedure, Kammann argues , is triggered by a 9 genetic testing request and a strict interpretation of the evidentiary requirement is 10 necessary to protect the rights of the presumptive parent. B ased on the NMUPA ’s 11 plain language, history, and purpose , we agree that the evidentiary re quirement must 12 be applied strictly

. 13

{ 16 } We look first to the plain language of the statute as the primary indicator of 14 legislative intent. Chatterjee , 2012

- NMSC

- 019, ¶ 11. In Section 40

- 11A

- 63 1 , the 15 Legislature stated that “[t]he district court shall apply the following rules to 16 adjudicate the [parentage] of a child.” (Emphasis added.) When a child has a 17 presumed parent, parentage “ may be disproved only by admissible results of genetic 18 testing.” Section 40

- 11A

- 63 1(A) (emphasis added)

. The Legislature’s use of the 19 word “only” is restrictive, and a straightforward reading of the evidentiary 2010 requirement in Section 40

- 11A

- 631 is that genetic testing is the sole type of evidence 1

to be considered whe n disproving a parentage presumption

. 2

{ 17 } T his view finds support in the history of the NMUPA , in how Section 40

- 3

11A

- 631 functions in conjunction with other provisions in the NMUPA , and in the 4 overarching public policy goals that animate the NMUPA

. U nder the prior version 5

of the NMUPA , our Supreme Court recognized in Chatterjee that biology d oes not 6 automatically rebut a presumption of parentage. See 2012

- NM SC

- 019, ¶¶ 38

- 47. In 7
that case , a woman sought joint custody of a child adopted by her partner during the 8

course of their long

- term domestic relationship. Id. ¶ 1. She alleged that she was a 9 presumed natural parent of the child under the NMUPA and filed a petition to 10 establish parentage in the district court

. See id. ¶ 2. As an issue of first impression, 11 our Supreme Court held that the presumptions of paternity set fort h in NMSA 1978, 12

Section 40

- 11

- 5 (1997 , repealed 2009 ) oper ate d in a gender

- neutral fashion such that 13

a woman could rely on the paternity presumptions to establish standing and 14 parentage under the NMUPA

. See Chatterjee , 2012

- NM SC

- 019, ¶¶ 9, 48

- 49. 15

{ 18 } In a n in

- depth analysis that bears on our decision here, t he Court considered 16 the statutory mechanism for rebutting a presumption of parentage

. Id. ¶¶ 38

- 47. T he 17

Court evaluated whether it was appropriate to rebut a presumption of parentage with 18 evidence that the petitioner was not the biological parent of the child

. Id. The Court 19 observed that the presumptions arose from a person’s conduct, not a biological 2011 connection, id. ¶ 15, and rejected the notion that a presumed parent’s admission that 1 he or she was not the child’s biological parent conclusively rebuts the presumption. 2

See i d. ¶¶ 41

- 47 (stating that district courts should not determine parentage solely on 3

the basis of a biological relationship ); see also id. ¶ 44 (noting that the Colorado 4 Parentage Act “does not elevate the presumption of biology over the presumption of 5 legitimacy and nothing in the statutory provisions provides that an admission by a 6

man that he is not the child’s biological father conclusively rebuts a parentage 7 presumption” ( text only) ( citation omitted)). 4 8

4 S oon’s brief cite s to this Court’s opinion in Lane v. Lane , 1996

- NMCA

- 023, ¶ 10, 121 N.M. 414, 912 P.2d 2 90 , which stated that the marital presumption “was indisputably rebutted by evidence of [the h] usband’s steril ity and the [ fact that the children were conceived via ] artificial insemination.” Lane was decided under the prior version of the Act and before our Supreme Court’s opinion in Chatterjee , which made clear that whether biology should be allowed to rebut a presumption of parenthood is a fact

- bound inquiry for the district court. Consequently, any suggestion in Lane that the marriage presumption is “indisputably” rebutted by evidence of the lack of a biological relationship must yield to Chatterjee ’s holding that there is no bright

- line rule. Further, there is no indication in Lane that either t he district court or this Court considered whether that case was “an appropriate action” in which to rebut the marriage presumption, and therefore Lane offers no guidance on that question as a counterpoint to the analysis in Chatterjee

. Cf. Tran v. Bennett , 2018

- NMSC

- 009, ¶ 22, 411 P.3d 345 (holding that it was appropriate to rebut the presumption of paternity with biological evidence under the facts presented because doing so would not deprive the child of having the support of two parents or sever a close emotional bond between the child and a presumed father); Fernandez v. Farmers Ins. Co. of Ariz

. , 1993

- NMSC

- 035, ¶ 15, 115 N.M. 622, 857 P.2d 22 (“ The general rule is that cases are not authority for propositions not considered. ” (internal quotation marks and citation omitted) ).12 { 19 } T he Court noted that the Legislature had “limited the circumstances for 1 rebuttal of the parentage presumption” by directing that a presumption should only 2

be rebutted “ in an appropriate action .” Chatterjee , 2012

- NMSC

- 019, ¶¶ 41

- 42. 3
However, because t he Legi slature had not defined what constitutes an “appropriate 4 action,” the Court adopted a variety of factors from other jurisdictions with similar 5

enactments to guide th at determination. See id. ¶ ¶ 42, 47. These included whether 6

there was a competing paren tage claim by a third party , whether denying the 7 presumed parent’s claim would leave the child without a second parent, and whether 8 the presumed parent had “actively participated in causing the children to be 9

conceived w ith the understanding that she would raise the children as her own 10 together with the birth mother.” Id. ¶¶ 42

- 47 (internal quotation marks and citation 11 omitted)

. The Court emphasized the importance of considering the child’s best 12

interests , id

. ¶ ¶ 43

- 47 , and stated u nequivocally that district courts should not 13

assume a genetic parentage determination is in the best interest of the child

. See 14

i d. ¶ 46 (noting that determining parentage solely on the basis of a biological 15 relationship may be detrimental to the child’s welfa r e by compromising the 16 continuity of an established relationship). 17

{ 20 } The NMUPA was amended in 2009 and now contains express guid ance on 18

when and how genetics factor into parentage adjudications. The NMUPA sets forth 19 the general rule that a person excluded as the parent by genetic testing would 2013 normally be adjudicated no t to be the parent of the child. S ee § 40

- 11A

- 631(D) . B ut 1

the Legislature carved out specific exception s for adjudications in volving a 2 presumed parent

. See § 40

- 11A

- 608. When a child has a presumed parent , parentage 3

“ may be disproved only by admissible results of genetic testing .” Section 40

- 11A

4 631(A) (emphases added ). Importantly, the results of genet ic testing are not 5

admissible to adjudicate parentage unless performed with the consent of both parties 6 or pursuant to a court order

. See § 40

- 11A

- 621(C). Under the latter scenario, a party 7 may file a motion to compel genetic testing, but the Legislature expressly provided 8

that the di strict court may deny the motion and adjudicate the presumed parent to be 9 the parent of the child. See § 40

- 11A

- 60 8 (A)

. That course of action is authorized by 10

statute if the district court determines by clear and convincing evidence that (1) the 11

conduct of the mother or the presumed parent estops that party from denying 12
parentage ; and (2) it would be inequitable to disprove the presumed parent’s 13 relationship with the child. See § 40

- 11A

- 608( A ) , (D). 5 The district court must also 14

5 S oon briefly mentions that Kammann did not preserve an argument that Section 40

- 11A

- 608 should apply in this case. T his is true insofar as Kammann did not argue below that Section 40

- 11A

- 608 applies, but we do not view this as a failure of preservation. Rule 12

- 321 (A) NMRA requires that issues must be preserved for our review. The issue presented here, whether the district court erred in conc luding that the marital presumption had been rebutted in the proceedings below, was unquestionably preserved. Kammann’s briefing on Section 40

- 11A

- 608 is merely argument directed to that issue; that is, Kammann does not appear to rely on Section 40

- 11A

- 608 in her briefing for any purpose other than to demonstrate the Legislature’s intent that “under some circumstances, application of the Genetic

Testing Provision might be unfair .” Soon has not provided us with any authority14 consider the best interest of the child based on a non exhaustive list of nine factors

. 1

See § 40

- 11A

- 608(B). Taken together, these provisions embod y our Legislature’s 2

continued recognition that genetics do not conclusively rebut a presumption of 3
parentage. See Chatterjee , 2012

- NMSC

- 019, ¶¶ 35

- 36 (noting that children may 4 form parent

- child bonds with persons other than their genetic parents and that New 5 Mexico courts have awarded custody to nongenetic parents in some circumstances). 6

{ 21 } Allowing district courts to uphold a parent

- child relationship even when a 7 genetic relationship is absent is in keeping with the dual public policy goals that 8

animate the NMUPA : the state’s “strong interest in ensuring that a child will be cared 9
for, financiall y an d otherwise, by two parents, ” and “the interest that children have 10

demonstrating that a party cannot provide additional legal authority and argument on appeal in support of an issue preserved below. We also agree with Kammann that the procedural posture in this case deprived her of an opportunity to raise Section 40

- 11A

- 608 before the district court ruled. Soon raised the issue of Kammann’s “paternity” in a motion t o dismiss for lack of standing. Standing under the Act is standing to adjudicate parentage. See § 40

- 11 A

602; Chatterjee , 2012

- NMSC

- 019, ¶ 49. The undisputed fact that the children were born during the parties’ marriage was sufficien t to establish Kammann’s standing to maintain a proceeding to adjudicate parentage. See § 40

- 11A

- 602; § 40

- 11A

204(A)(1). To t he extent Soon’s motion also included a substantive argument on the merits of Kammann’s parentage, and to the extent the evidentiary hearing on Soon’s motion to dismiss for lack of standing functioned as a parentage adjudication , the ultimate ruling on the merits of Kammann’s presumed parentage bypassed several procedural and evidentiary provisions required by Article 6

. Soon neither presented admissible results of genetic testing nor filed a motion seeking to compel genetic testing to rebut Kammann’s presumed parentage

. Given this, we agree with Kammann that the improper procedure prevented her from opposing a motion for genetic testing by invoking the equitable pro tections of Section 40

- 11A

- 608.15 in their own support.” Id. ¶ ¶ 32

- 33 . As to the s tate’s interest, the Chatterjee Court 1

observed that “parents have an obligation to support their children in any possible 2 combination and permutation of marriage, method for conception of the child, and 3 arrangements that intende d parents make to have children, ” and when that care is 4 lacking, the responsibility of caring for the child falls to the state

. Id. ¶¶ 31

- 32 5 ( omission , internal quotation marks , and citation omitted). A s to the child’s interest , 6

th e Court observed that a “[c]hild’s need for love and support is no less critical 7 simply because [his or] her second parent also happens to be a woman.” Id. ¶ 34. 8 Collectively, Sections 40

- 11A

- 631(A) and

- 608 give force to these overarching 9 goals by allowing district courts to decide in each case whether the genetic 10 relationship , or lack thereof, should be allowed to rebut a presumption of parentage

. 11

{ 22 } T he language, history, and purpose of the NMUPA lead us to conclude that 12

the Legislature intended the evidentiary requirement for rebutting a parentage 13 presumption to be applied strictly

. Consequently , a parentage presumption cannot 14 be rebutted in the absence of admissible results of genetic testing. Were it otherwise, 15 parties could circumvent the district court’s authority to deny a motion for genetic 16 testing by eliciting an admission from the presumed parent that they have no genetic 17 relationship with the child

. In effect, i f admissions were allowed to rebut the 18 presumption in lieu of genetic testing results, then in any case where an admission 19

is obtained, the lack of a genetic relat ionship would conclusively rebut a parentage 2016 presumption , regardless of whether doing so served the best interests of the child

. 1

This is c ontrary to the intent expressed in the statutory framework and would 2

undermine the fundamental considerations that underlie a parentage determination. 3

T herefore , in line with our Supreme Court ’s reasoning in Chatterjee , we hold that a 4 presumed parent’s admission that they are not the genetic parent of the child is 5

insufficient to rebut a parenta ge presumption. See 2012

- NMSC

- 019, ¶¶ 43

- 47. 6

{ 23 } In this case, b ecause neither party sought or presented genetic testing results , 7
we reverse the district court’s determination that the marriage presumption ha s been 8 rebutted and remand for further proceedings. 9

II. Assisted Reproduction Provisions 10

{ 24 } Kammann next argues that she produced sufficient evidence to establish 11
parentage under Section s 40

- 11A

- 201(B)(5) and

- 704 , which provide that the parent

12 child relationship is established if Kammann consente d to the assisted reproduction 13 in a signed record. Kammann presented a variety of documents relat ing to multiple 14 artificial insemination procedures beginning in August 2015

. 6 The district court 15

6 On August 1 8, 2015, Soon and Kammann both signed a form entitled “Gener al Policy Statement and Consent. ” That same day, Soon signed a form entitled , “Consent for Artificia l Insemination With Donor Sperm. ” Kammann did not sign that form. On November 30, 2015, the parties signed a form laying out the risks and complications that arise in multiple

- birth pregnancies. In addition to these forms, the record contains four documents chronicling Soon’s artificial insemination procedures. The first three are entitled , “Sperm Wash Report,” and include a patient attestation which states , “I (we) attest that I (we) give [consent ] and permission for this processed s perm specimen as identified by me (us)17 found that Kammann had not produced a signed consent specific ally for the July 1 2016 procedure that resulted in Soon’s pregnancy . F or that reason, the district court 2

concluded Kammann had failed to produce a signed record that complied with the 3 requirements of the NMUPA , had failed to prove she consented to assisted 4 reproduction , and was a not a parent of the children. On appeal, Kammann maintains 5

that her evidence

— a signed consent for Soon’s August 2015 insemination procedure 6

and three other signed forms related to later procedures

— was sufficient to satisfy 7
the statutory requirement. While Kammann frames the matter as a question of 8 sufficiency of the evidence, the issue presented requires us to determine the scope 9

of evidence a di strict court may consider under the NMUPA ’s consent requirements

. 10

{ 25 } We begin with the statutory provisions that govern parentage by consent to 11 assisted reproduction. The NMUPA states in Section 40

- 11A

- 201(B)(5) that the 12
parent

- child relationship is established by “ the [person’s] having consented to 13 assisted reproduction by a woman pursuant to Article 7 of the [NMUPA] that 14

resulted in the birth of the child.” In Article 7, the NMUPA sets for th the 15 requirements t o establish consent. It states , “ T he intended parent or parents shall 16

to be utilized for the purpose of insemination for procreation.” The repor ts are dated September 30, 2015 , October 28, 2015, and January 22, 2016. Each sperm wash report is signed by Soon and Kammann. The final docume nt is an “Andrology Report , ” which contains similar technical data to the sperm wash reports, but does not include the patient attestation. The form is dated July 13, 2016 , and is only signed by Soon.18 consent to the assisted reproduction in a record signed by them before the placement 1 of the eggs, sperm or e mbryos.” Section 40

- 11A

- 704(A ); see also § 40

- 11A

- 703 (“A 2 person who

. . . consents to assisted reproduction as provided in Section 7

- 704 of the 3 [NMUPA] with the intent to be the parent of a child is a parent of the resulting 4 child.”). 7 5

{ 26 } T he district court construed these provisions to mean that the signed consent 6 must relate to the specific procedure that resulted in pregnancy and the eventual birth 7
of the children. That interpretation effectively requires intended parents to sign a 8 consent document before each placement i n cases such as thi s, where the birth 9

mother undergo es multiple placements before becoming pregnant

. For a number of 10

reasons, we view this restrictive construction as contrary to the Legislature’s intent

. 11

{ 27 } First, the plain language of the NMUPA is not so restrictive. T he only time 12 requirement bearing on the written consent is that it must occur “before the 13 placement of the eggs, sperm or embryos.” Section 40

- 11A

- 704(A). The NMUPA 14

does not prohibit district c ourts from considering consent documents signed by the 15 parties at any point before the final placement , nor does it expressly require a new 16 consent before each placemen t when parties attempt assisted reproduction more than 17

7 S ection 40

- 11A

- 703 does not require a consenting person to provide genetic material or physically carry the pregnancy. This structure ensures that a nonbirthing spouse has a way to establish parentage that does not rely on a genetic or biological relationsh ip to the child

— a relationship that will be impossible to establish in assisted reproduction involving a third

- party donor.19 once before they successfully con ceive

. R ather than focusing on the timing of the 1 parties’ consent, the NMUPA focuses on the parties’ intent

— whether a person 2 consented to assisted reproduction with the intent to be the parent of the resulting 3

child. Section 40

- 11A

- 703

. Given the absence of other restrictions, the NMUPA 4 does not prevent consideration of any documents signed by the parties befor e they 5 conceive via assisted reproduction, so long as those documents manifest their intent 6 to be a parent of the resulting child. 7

{ 28 } The NMUPA also indicates that consent, once given, can remain effective for 8 an extended period of time

. Section 40

- 11A

- 706(B) governs the withdrawal of 9 consent and implicitly recognizes that consent remains effective until it is 10

withdrawn. See § 40

- 11A

- 706(B) (“Unless otherwise agreed in a signed record, the 11 consent of a woman or man to assisted reproduction may be withdrawn by that 12 person in a signed record delivered to the other person at any time before placement 13 of eggs, sperm or embryo s if the placement has not occurred within one year after 14 the consent.”). As a practical matter, i f written consent were required before every 15 placement , then a person would only be able to withdraw consent in the brief window 16 of time between signing the consent form for the procedure and the ensuing 17 performance of the procedure. While it is not entirely outside the realm o f possibility 18 that a person could change their mind in such a narrow window , the more reasonable 19

view is that parties can manifest their intent and consent to the entire course of 2020 assisted reproduction

— whatever it entails and however many attempts are 1

nece ssary

— until the birthing mother conceives. See Lane , 1996

- NMCA

- 023, ¶ 20 2 ( observing that the writing requirement serves a “cautionary purpose” because 3 “[o]ne who pauses to sign a document can be expected to give more thought to the 4

consequences of consent than one who gives consent in a less formal setting”). 8 5

{ 29 } F inally, we cannot ignore the practical and public policy implications of 6 narrowly construing the consent provisions to require a signed document for the 7 specific procedure that resulted in the pregnancy and birth. Such a formalistic 8 requirement raises the possibility that a willing and intended parent may fail to 9 satisfy the legal requirements to establish parentag e for want of a single document, 10

even if there i s considerable written evidence to the contrary

. What if, for example, 11 the intended parent was unable to attend the appointment or arrived late , after the 12 placement ? What if the provider does not request a signature for that particular 13 procedure or misplac es the form? In those circumstances, even if there wa s written 14

consent to assisted reproduction in general , the intended parent would not be able to 15 produce the evidence necessary to establish parentage

. On the other side of the coin , 16

this c ould also prevent a birth parent from establishing the other parent’s obligation 17

8 Soon contends that she did not desire Kammann to be the parent of the children at the time she conceived the children in July 2016. While she points to her own testimony as un contradicted evidence that she had changed her mind, there is no evidence in the record that she communicated a withdrawal of consent to Ka mmann or her medical providers.21 to help support the child. E.g. , Chatterjee , 2012

- NMSC

- 019, ¶ 62 (Bosson, J., 1 specially concurring). Such a result is not only impractical , it is in conflict with 2 public polic y underlying the NMUPA

. Id. ¶ ¶ 32

- 33

. As this Cou rt observed when 3 construing a similar provision in the prior version of the NMUPA , “when [spouses] 4 both approve of

. . . conceiving a child through artificial insemination and both wish 5 [the nonbirthing spouse] to be treated as the natural [parent], then the [s] tate should 6

honor that wish.” Lane , 1996

- NMCA

- 023, ¶ 20. 7

{ 30 } For all of t hese reasons, we see no justification for limiting proof of consent 8 to only those documents signed for the specific procedure that results in pregnancy. 9

As this Court observed in Lane , t he requirement of a signed record serves an 10 evidentiary function, the purpose of which is to “avoid[] disputes regarding whether 11 consent was actually given.” Id. L ike Lane , “[w]e fail to see how the date of the 12 writing affects the probative value of the wr iting as evidence of the consent.” 13

Id. ¶ 22. We reverse the district court’s contrary decision. 14

{ 31 } On remand, the district court must consider whether the parties’ written 15 evidence establishes Kammann’s consent to assisted reproduction. Because the 16 Legislature has not prescribe d the nature of the writing or any particular form of 17 words for the consent, and because the purposes of the statute have not changed, the 18

three factors articulated in Lane continue to provide a helpful framework for 19 evaluating whether a writing is satisfactory: “ if the writing conveys in some manner 2022 that (1) the [nonbirthing spous e] knows of the conception by artificial insemination, 1 (2) the [nonbirthing spouse] agrees to be treated as the lawful [parent] of the child 2 so conceived, and (3) the [birthing spouse] agrees that the [nonbirthing spouse] will 3

be treated as the lawful [par ent] of the child.” Id. ¶ 21. While the district court’s oral 4 ruling indicates that at least one of the parties’ exhibits amounted to a general 5 consent early on, the court did not make a finding on this point , and t his Court cannot 6 do so for the first time on appeal. See State v. Gonzales , 1999

- NMCA

- 027, ¶ 9, 126 7 N.M. 742, 975 P.2d 355 (“It is a bedrock principle of appellate practice that appellate 8 courts do not decide the facts in a case”); see also Duke City Lumbe r Co. v. Terrel , 9

1975

- NMSC

- 041, ¶ 5, 88 N.M. 299, 540 P.2d 229 (“ [I] t is for the finder of the facts, 10 and not the appellate courts, to weigh conflicting evidence and decide where the 11 truth lies.”). 12

CONCLUSION 13

{ 32 } For the foregoing reasons, th e district court’s order s regarding Kammann’s 14 parentage are reversed and this matter is remanded for further proceedings consistent 15 with this opinion

. 16

{ 33 } IT IS SO ORDERED. 17

__________________________________ 18 MEGAN P. DUFFY , Judge 1923 WE CONCUR: 1

_______________________________ 2 J. MILES HANISEE, Chief Judge 3

_________________________________ 4 GERALD E. BACA, Judge 5