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                                                                 Electronically Filed
                                                                 Supreme Court
                                                                 SCAP-XX-XXXXXXX
                                                                 04-OCT-2018
                                                                 08:30 AM




              IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                   ---o0o---


                                     LC,
                            Petitioner-Appellant,

                                       vs.

      MG and CHILD SUPPORT ENFORCEMENT AGENCY, STATE OF HAWAI#I,
                        Respondents-Appellees.


                               SCAP-XX-XXXXXXX

           APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
                 (CAAP-XX-XXXXXXX; FC-P NO. 16-1-6009)

                               OCTOBER 4, 2018

    RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.1

           OPINION OF THE COURT EXCEPT AS TO PART III(B) AND
          OPINION AS TO PART III(B) BY NAKAYAMA, J., IN WHICH
                        RECKTENWALD, C.J., JOINS

             The Uniform Parentage Act (UPA) was adopted by the

Hawai#i State Legislature in 1975 to “provide substantive legal

1
      Justice Nakayama, with whom Chief Justice Recktenwald joins, writes the
opinion of the court except as to Part III(B). Justice McKenna, with whom
Justice Pollack and Justice Wilson join, joins the opinion of the court except
as to Part III(B), and writes the opinion of the court with respect to the
issue addressed in Part III(B) of Justice Nakayama’s opinion.
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equality for all children regardless of the marital status of

their parents.”    H. Stand. Comm. Rep. No. 190, in 1975 House

Journal, at 1019.    To that end, the UPA presumes legal paternity

in certain circumstances.      One such presumption of paternity is

the marital presumption, which presumes that a man is the natural

father of a child when he and the child’s mother are married to

each other and the child is born during the marriage.            The issue

in this case is whether this presumption similarly applies in

determining whether a woman married to the child’s natural mother

is the parent of that child.

          Petitioner-Appellant LC sought a divorce from her wife

Respondent-Appellee MG in the Family Court of the First Circuit

(family court) shortly after a child was born to MG through an

artificial insemination procedure.        While LC and MG were legally

married at the time of the child’s birth, LC is not biologically

related to the child.     After the child was born, LC subsequently

sought an order in the family court to disestablish paternity.

The family court denied LC’s request, determining that under the

UPA and Hawaii’s Marriage Equality Act (MEA), LC was the child’s

legal parent.   LC appealed, and the case was transferred to this

court from the Intermediate Court of Appeals.

          For the reasons discussed below, we first hold that

both the UPA and the MEA demonstrate that the UPA’s marital


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presumption of paternity applies equally to both men and women.

Therefore, because LC and MG were legally married at the time

that the child was born, LC is presumed to be the legal mother of

the child.   Second, we hold that LC did not rebut the presumption

of parentage.

           Accordingly, we conclude that LC is the legal parent of

the child, and affirm the family court’s November 1, 2016

Decision and Order denying her request to disestablish paternity.

                             I.   BACKGROUND

           LC and MG first met in 2010, and began a relationship

in 2011.   At that time, LC was a student at the Naval Academy in

Annapolis, Maryland and MG lived in Silver Spring, Maryland.

Also during that time, LC and MG began to discuss the possibility

of having a child together.       On October, 13, 2013, LC and MG were

legally married in Washington, D.C.        The day after, both parties

visited Shady Grove Fertility Reproductive Science Center (Shady

Grove) in Rockville, Maryland.       There, they both signed Shady

Grove’s “Ovulation Induction, Monitoring and/or Insemination

Treatment” form and a “Consent to Accept Donated Sperm from

Anonymous Donor.”    The consent form read in part,
                 I/We, [MG] (“Sperm Recipient”) and [LC] (“Recipient
           Partner”, if applicable) each hereby jointly and
           individually elect to utilize donor sperm of an anonymous
           donor recruited by a Sperm Bank (“Donor”) which may be used
           as part of my/our assisted reproductive technology
           treatments. . . .



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            . . . .

                  I have read the “Information Packet for Use of Donor
            Sperm” as well as this Consent document in its entirety and
            have had ample time to reach my/our decision free from
            pressure and coercion, and agree to proceed with my/our
            participation in the use of donor sperm as stated above.

The parties decided that MG should carry their first child,

because she was older and LC was currently serving in the

military.

            The parties relocated to O#ahu, Hawai#i pursuant to LC’s

military orders and assignment in October 2014.            At that time, MG

was not employed, and LC financially supported the couple.

            In December 2014, LC and MG jointly attended an

appointment at the Fertility Institute of Hawai#i (FIH), met with

a physician’s assistant, and toured the facility.

            In January 2015, LC deployed overseas and MG remained

on O#ahu.   While LC was deployed, she continued to communicate

with MG regarding MG’s plans to become pregnant.            On February 23,

2015, MG sent a text message to LC:
                  I do have to tell you something... I’m so worried
            about IUI [intrauterine insemination]... I have been
            checking the PO box every single day waiting for my refund
            and nothing! My menses is here and I’m supposed to order out
            [sic] vial on Monday morning. I’m so upset and depressed bc
            I don’t have the extra money right now...

The next day, MG texted LC that “ it looks like everything is all

good.   I start clomid[2] tonight and come back in a week.              And

I’m so happy that I do have ‘time’ to order our vial!”             LC

2
     Clomid is a fertility drug.

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responded, “I’m glad everything went ok.”

            On February 25, 2015, LC (still overseas) and MG

discussed their relationship through text messages.            When MG

asked whether LC was having second thoughts about having a child,

LC responded that she “want[ed] to make sure we are truly good

before we start a family,” and “want[ed] a child more than

anything but [wanted] them to have parents that adore each other

as well as them.”     MG asked LC whether she was “backing out.”            LC

responded, “What are you talking about backing out?            I have

always wanted a child[.]”       LC stated that she was “concerned

about us.    I want a loving family that respects each other[.]”

The text message exchange ended when MG responded:
            [MG:] The way (from our previous convos), I’d stres [sic]
            taking the pills for he [sic] past few days per doctor’s
            orders
            [MG:] I have been taking the pills since Monday to
            prepare[.]
            [MG:] I forgot to tell you that.
            [MG:] Night!

The next day, LC responded, “K @ pills.”

            On March 2, 2015, a cryobank sent a sperm sample to FIH

and billed it to MG.      After an ultrasound appointment, MG texted

LC about the results of the ultrasound, and stated that FIH would

“call [her] later [that day] to let [her] know if we can get IUI

tomorrow or Wednesday.”       After several other texts were sent by

MG, LC responded, “Hi honey.        Ok.   [Talk to you] after my flight.

I love you[.]”

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          On March 4, 2015, MG signed FIH’s “Consent for

Intrauterine Insemination.”      Because LC was overseas, she did not

sign the consent form.     The IUI procedure also took place on

March 4, 2015.

          On March 19, 2015, MG informed LC via text message that

she was pregnant.    Five hours later, LC responded, “I’sa

pregnant!!   I love you baby!!! [. . .] [Good morning] honey

that’s great news to awaken to! [. . .] I get to rub your tummy

and feel our baby[.]”     When MG asked LC when they should tell

people about the pregnancy, LC responded, “You tell me when.                I’m

telling my mom and brother whenever we do[.]”

          Around Mother’s Day 2015, while LC was still deployed,

she wrote a “Future Mother’s Day Card” to MG.          Enclosed in the

card was a note to “The Future Mother” from “The Future

Momma/Papa.”   The note also contained a poem which referenced

MG’s pregnancy and stated that “[y]ou will cry, you will smile,

you will look into our child[’]s eyes, and we will love you

through it all.” (Emphasis in original.)         The note was signed by

LC and after the signature, LC further wrote “I will always be

here for our family!”     Similarly, on June 8, 2015, LC addressed a

postcard to “[MG] & Future Son/Daughter,” which stated that LC

had gotten MG “a spa kit to let [her] pamper [herself] and for my

future child I bought you the softest/coolest Iceland bear I


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could find.      I love you both!      Hope you enjoy your gifts!”

(Formatting altered.)

             When LC returned to Hawai#i in September 2015, she

attended both an ultrasound appointment and a lamaze class with

MG.

             On October 7, 2015, LC filed a motion for divorce from

MG in the family court.        On November 11, 2015, MG gave birth to

the child at Castle Medical Center on O#ahu.            The child’s birth

certificate lists MG as the “mother” and LC as the “co-parent”.

At the time that the child was born, LC and MG were not legally

divorced; divorce proceedings were pending.

A.     Family Court Trial

             On January 11, 2016, LC sought an order in the family

court to disestablish parentage.3           LC also submitted a

declaration with her petition that stated that she “did not sign

any documents stating that she consented to the alleged in vitro

fertilization that lead [sic] to the pregnancy,” that the child

born to MG was not hers, “genetically or otherwise,” and that she

“never held [the] child out to be her own.”             (Emphasis in

original).

             At trial, MG first called two witnesses to testify as

to LC’s involvement in MG’s medical appointments on O#ahu.


3
       The Honorable Matthew J. Viola presided.

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First, Robin Washowsky (Washowsky), the business manager of FIH,

testified about MG’s medical records and LC’s consent to MG’s IUI

procedure.    On cross-examination, after being asked to confirm

that there is a line for a partner’s initials on the “Consent to

Receive Cryopreserved Sperm” form, Washowsky was asked how the

absence of a spouse’s signature on a consent form would affect

the patient’s procedure.4      Washowsky responded that “[i]f there’s

a spouse here, we can have them sign.         But in the absence of a

spouse, we would still go through with the procedure.”             Washowsky

further testified that there were no signatures or initials from

LC anywhere in MG’s FIH medical file.         Nevertheless, Washowsky

testified on redirect examination that if FIH received a

withdrawal of consent to an artificial insemination procedure,

the clinic would have a duty to inform the patient of that

withdrawal.    Washowsky further stated that there was no evidence

in MG’s medical record that MG was notified of any withdrawal of

consent.

            Dr. Emilie Stickley (Dr. Stickley), an OB/GYN at Pali

Women’s Health Center (PWHC), also testified.           Dr. Stickley

testified that LC attended a July 2015 medical appointment via

video conference with MG and herself.         Regarding the topics



4
      As noted, LC did not sign the “Consent for Intrauterine Insemination”
that MG signed on March 4, 2015 before MG received the sperm at FIH.

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discussed during the appointment, Dr. Stickley stated that

neither LC nor MG expressed to her that they no longer wanted to

go through with the pregnancy.       After the July 2015 appointment,

Dr. Stickley did not recall any further contact with LC.

          MG also testified.       On direct examination, when asked

whether she received any documents from FIH before the birth of

the child indicating that LC was trying to withdraw consent, MG

responded “no.”    However, when asked on cross-examination whether

she emailed LC copies of the consent to receive sperm that she

herself initialed and signed, MG also testified that she did not.

          On the second day of trial, LC testified.           LC first

testified that she had no involvement in using FIH or choosing a

sperm donor.    While LC admitted that she and MG discussed the

possibility that MG become pregnant by assisted reproduction, LC

also testified that she told MG “several times” beginning in

March 2014 that she did not want to go forward with assisted

reproduction.    LC specifically testified:
          And before we left –- before I left in January [2015], for
          our anniversary we had this big argument where [MG] said
          that we should not have children, and I agreed. And then
          she brought it back up while I was on deployment, and I
          specifically called her and told her this was not the right
          time as well as –- she hung up, and that’s how the whole
          text message chain started, where again [. . .] I stated
          that this was not the right time for us to –- to have a
          child.

LC also believed that her text to MG, which read, “I want to make

sure that we are truly good before we start a family” and the

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following exchange, “specifically” demonstrated that LC did not

want to go forward with the pregnancy.

            LC also explained that when she received MG’s texts

about taking Clomid pills, she knew that because she was eight

thousand miles away, there “was nothing [she could] do” to stop

MG from taking them.      Therefore, LC testified that she just

responded “K at pills.”       LC also stated that it was her

understanding that MG was taking the pills “to get ready for the

process.”     LC later testified that when MG sent the text telling

her that she was taking Clomid pills, she “called [MG]

immediately and told her to –- to pause.”          LC stated that this

was the second time she told MG to stop taking Clomid.

            Similarly, regarding MG’s “I’m pregnant” text and LC’s

response, LC testified that she felt there was nothing she could

do to stop MG’s pregnancy:
                  [LC’S COUNSEL:] What did you mean by “our baby”?
            What’s going through your mind when that’s happening?

                  [. . . .]

                  [LC:] Oh I believe it was in –- so March. So again,
            after [MG] had already done the IUI and it’s confirmed that
            she is pregnant –- I mean, like, at this point there’s
            absolutely nothing that I knew at that time that I can do.
            [. . .] So I mean, I’m stuck, and she’s my wife. So I –- I
            guess it’s “our baby.”
                  [LC’S COUNSEL:] I see.
                  So did you ever tell your mom and brother that –- that
            you were having a baby with –- with [MG] or that [MG’s]
            having a baby for you?
                  [LC:] I –- I told my mother and brother that despite
            my wishes, [MG] is pregnant.




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            With respect to the postcard to “[MG] & Future

Son/Daughter,” LC first denied that she had ever sent the

postcard.    Instead, LC testified that the postcard, along with

the spa kit, was actually in a box of belongings that remained in

LC’s possession until she returned from deployment.            LC testified

that she only gave MG these items when she returned home.

Specifically, LC stated:
                  [LC:] So this is –- again, this was part of my
            journal, and there were more entries in my journal of me
            just expressing everything. [. . .] I’ve always wanted a
            child, and I always thought it would be with [MG]. So I’m
            just expressing everything that I want to do, that I want to
            actually be able to do. Like –- like, she’s pregnant, and
            if it were mine, like, I would be doing all these things. [.
            . .]
                  So I’m just, in this point, trying to figure out –-
            like, hey, this is what I want and, like, you are going to
            be so loved, and I’m going to get you the best thing from
            all the places of the world that I will ever possibly go. [.
            . .] So I grabbed –- so bears. I grabbed toiletries. I
            grabbed as much stuff as I could from this place as well as
            other places in the world that I went.
                  THE COURT: Can I interrupt for a second. I just want
            to clarify something. [. . .] [Y]our testimony is that you
            were referring to not the child that [MG] was pregnant with,
            but possibly a future child you’d have with [MG]?
                  [LC:] Yes.
                  THE COURT: At that point, if I understood your
            testimony correctly –- your testimony was that you had told
            [MG], “Don’t go through with this procedure till I’m back.”
                  [LC:] Yes.
                  THE COURT: And she –- your testimony is that she
            ignored your –- your statements and went ahead and got
            pregnant anyway. [. . .]
                  [LC]: Yes.

                  [. . . .]

                  THE COURT: So can you –- can you explain to me why
            you’re still considering having a child with [MG] in the
            future?
                  [LC:] Again, like, this is –- this is my wife, and I
            was trying to reconcile, like things with her. [. . .] And
            at this point in time, I’m like, okay, like, yeah, she’s
            done all this bad stuff, but [. . .] maybe there’s a chance


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            that we can fix this and everything will be all right, even
            despite all of this. But more things happened after this
            date that was just –- like, “You care nothing about me, and
            it’s only about you.” So yeah, this –- this isn’t going to
            work.

            Regarding the ultrasound appointment and the lamaze

class that she attended with MG after she returned from

deployment, LC testified that because MG did not have a car, she

needed to take her.       Specifically, because MG requested a ride to

her lamaze class, LC testified that she drove her to the class

and accompanied her inside.

            Finally, LC attempted to enter into evidence two faxes

she sent to Shady Grove and FIH withdrawing consent to an IUI.5

The fax to Shady Grove is dated January 1, 2014 and LC testified

that it was written and sent to the facility a couple of weeks

after LC and MG returned from their honeymoon that same month.

According to the date stamp on the fax, Shady Grove received the

fax on December 9, 2015 (after the child was born).

B.    The Family Court Decision and Order

            On November 1, 2016, the family court entered a

decision and order concluding that a legal parent/child

relationship existed between LC and the child.            The family court

therefore denied LC’s request for an order that she be


5
      The family court did not admit the withdrawal fax to FIH into evidence
for lack of foundation. The family court admitted the withdrawal fax to Shady
Grove (Exhibit KK) into evidence by stipulation.

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disestablished as legal parent of the child.

           In its order, the family court began by describing what

it believed to be the fundamental issue in this case: “Does a

legal parent/child relationship exist between Petitioner and the

Child?”   In order to answer that question, the family court

looked to the UPA, which lists several circumstances in which a

man would presumptively be the “natural father” of a child.

Hawai#i Revised Statutes (HRS) § 584-4(a) (2006).6           Furthermore,



6
     HRS § 584-4(a) (2006) provides in relevant part:

           Presumption of paternity. (a) A man is presumed to be the
           natural father of a child if:
                 (1)   He and the child’s natural mother are or have
                       been married to each other and the child is born
                       during the marriage, or within three hundred
                       days after the marriage is terminated by death,
                       annulment, declaration of invalidity, or
                       divorce, or after a decree of separation is
                       entered by a court;
                 (2)   Before the child’s birth, he and the child’s
                       natural mother have attempted to marry each
                       other by a marriage solemnized in apparent
                       compliance with the law, although the attempted
                       marriage is or could be declared invalid . . . ;
                 (3)   After the child’s birth, he and the child’s
                       natural mother have married, or attempted to
                       marry, each other by a marriage solemnized in
                       apparent compliance with the law, although the
                       attempted marriage is or could be declared
                       invalid . . . ;
                 (4)   While the child is under the age of majority, he
                       receives the child into his home and openly
                       holds out the child as his natural child;
                 (5)   Pursuant to section 584-11, he submits to court
                       ordered genetic testing and the results, as
                       stated in a report prepared by the testing
                       laboratory, do not exclude the possibility of
                       his paternity of the child . . . ;
                 (6)   A voluntary, written acknowledgment of paternity
                       of the child signed by him under oath is filed
                       with the department of health[.]

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the family court noted that HRS § 584-21 (2006) provides that in

actions to declare a mother and child relationship, “[i]nsofar as

practicable, the provisions of [the UPA] applicable to the father

and child relationship,” i.e. provisions like HRS § 584-4(a),

“shall apply.”

            The family court also noted that Hawaii’s MEA intended

that “there be no legal distinction between same-sex married

couples and opposite-sex married couples with respect to

marriage[.]”7

            Applying these statutory provisions to this case, the

family court first determined that HRS § 584-4(a)(1) presumes

that a man is the natural father of a child if “he and the

child’s natural mother are or have been married to each other and

the child is born during the marriage.”          Applying that provision

in a gender-neutral fashion as required by HRS § 584-21, the

family court determined that because LC and MG, the child’s


7
      HRS § 572-1.8 (Supp. 2014) provides:

            Interpretation of terminology to be gender-neutral. When
            necessary to implement the rights, benefits, protections,
            and responsibilities of spouses under the laws of this
            State, all gender-specific terminology, such as “husband”,
            “wife”, “widow”, “widower”, or similar terms, shall be
            construed in a gender-neutral manner. This interpretation
            shall apply to all sources of law, including statutes,
            administrative rules, court decisions, common law, or any
            other source of law.

      However, the family court’s decision does not actually rely on the MEA
to conclude that the marital presumption of parentage applied to LC.

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natural mother, were married to each other at the time the child

was born, LC is presumed to be the child’s legal parent.8

            The family court then explained that under HRS § 584-

4(b) (2006), the presumption of parentage was rebuttable:
            A presumption under this section may be rebutted in an
            appropriate action only by clear and convincing evidence.
            If two or more presumptions arise which conflict with each
            other, the presumption which on the facts is founded on the
            weightier considerations of policy and logic controls[.]

The family court noted that “[i]n the context of a child

conceived through artificial insemination by donor during a

marriage, the presumption of legal parentage incorporates a

rebuttable presumption of consent to the artificial insemination.

Only clear and convincing evidence can rebut the presumption of

consent and therefore legal parentage.”           For support, the family

court noted that several other jurisdictions imposed a

presumption of consent to artificial insemination by the spouse

of a woman who gives birth to a child by that procedure.

            Therefore, in order for LC to rebut the presumption

that she was the legal parent of the child in this case, the

family court explained that LC would need to prove, by clear and

convincing evidence, that she did not consent to MG undergoing

the IUI procedure that resulted in her pregnancy and the birth of


8
      However, the family court also concluded that HRS § 584-4(a)(4) “d[id]
not create a presumption of a parent-child relationship between [LC] and [MG],
because [LC] did [not] receive the Child into her home and hold out the Child
as her natural child.”

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the child.

          The family court then made several credibility

determinations regarding LC’s actions and testimony.            It found

that:
          68.   MG’s Exhibit KK is a letter dated January 1, 2014 from
                [LC] to Shady Grove. The letter states that [LC]
                withdraws her consent to IUI, IVF or any other
                procedure performed on MG and that any child born to
                [MG] without [LC’s] consent “will not be my child or
                responsibility in any way.”

          69.   There is no credible evidence that [LC] sent the
                letter marked as Ex. KK to Shady Grove prior to the
                birth of the Child.

          70.   There is no credible evidence that [LC] gave a copy of
                the letter marked as Ex. KK to [MG] or informed her of
                its contents prior to the birth of the Child.

          71.   [MG] did not become aware of the letter marked as Ex.
                KK or its content until after the birth of the Child.

          . . . .

          74.   There is no credible evidence that prior to [MG]
                undergoing the IUI procedure on March 4, 2015 or prior
                to the Child’s birth that [LC] informed FIH that she
                did not consent to or that she objected to [MG]
                undergoing an IUI or any other artificial insemination
                procedure to become pregnant.

          75.   Prior to March 4, 2015, [LC] did not inform [MG] that
                she objected to and/or did not consent to [MG]
                undergoing an IUI or any other artificial insemination
                procedure at FIH.

          76.   [LC’s] testimony that prior to [MG] undergoing the IUI
                artificial insemination procedure on March 4, 2015 she
                clearly verbally informed [MG] that she objected to
                [MG’s] attempt to get pregnant at that time was not
                credible.

          77.   On November 11, 2015, [MG] gave birth to the Child at
                Castle Medical Center.

          78.   [MG] is the Child’s natural mother.

          79.   Both [LC] and [MG] are listed as the Child’s parents
                on his birth certificate. [LC] did not consent to her


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                   being listed as a parent on the birth certificate.

Accordingly, the family court determined:
            108.   [LC] did not meet her burden of proving by clear and
                   convincing evidence that she did not consent to [MG]
                   undergoing the artificial insemination procedure that
                   resulted in her pregnancy and the birth of the Child.
                   [LC] therefore has failed to rebut the presumption
                   under HRS § 584-4(a)(1) that she is a legal parent of
                   the Child.

            109.   Accordingly, the court finds and concludes that a
                   legal parent/child relationship exists between [LC]
                   and the Child, i.e., that [LC] is a legal parent of
                   the Child, and therefore [LC’s] request for an order
                   that she be disestablished as a legal parent of the
                   Child is denied.[ 9]

C.    Appellate Proceedings

            LC filed a notice of appeal on November 28, 2016.10

In her opening brief, LC raised two points of error, which we

construe to present three arguments.          First, LC argued that the

family court erred when it decided that LC was the legal parent

of the child even when she had no genetic link with the child.

Second, LC argued that the family court erred when it decided

that the marital presumption of parentage, HRS § 584-4(a)(1),

applied to LC.      And third, LC contended that even if the marital

presumption applied, the family court erred when it decided that



9
      The family court subsequently made related findings of fact and
conclusions of law regarding custody, visitation, child support, and
attorneys’ fees and costs.

10
      Respondent-Appellee Child Support Enforcement Agency (CSEA) was made a
“nominal appellee” in this case. See Hawai#i Rules of Appellate Procedure
(HRAP) 2.1(b). As a nominal appellee, the CSEA “assert[ed] no interest in the
outcome of the appeal.”

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she did not rebut the presumption.

            MG filed an answering brief requesting that this court

affirm the family court’s determination that LC is the legal

parent of the child.       MG contended that the UPA’s “marital

presumption of parentage applies to anyone –- whether male or

female –- who is married to a woman who gives birth,” and that LC

“failed to produce clear and convincing evidence that she did not

consent to the conception of the child.”

            The State of Hawai#i filed an amicus brief which

adopted MG’s position with respect to the marital presumption of

parentage, i.e., that “the spouse of a woman who delivers a child

must be deemed the presumptive legal parent of the child pursuant

to HRS § 584-4(a)(1) (the “marital presumption”), regardless of

any genetic link to the child.”11

            On August 9, 2017 LC filed an application for transfer

to this court, which was granted.

                         II.   STANDARDS OF REVIEW

A.    Statutory Interpretation

            “The interpretation of a statute is a question of law

reviewable de novo.”       In re Doe, 95 Hawai#i 183, 190, 20 P.3d

616, 623 (2001) (citations and ellipses omitted).             This court’s


11
      The State did not take any position on whether LC failed to show by
clear and convincing evidence that she did not consent to MG’s pregnancy.

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statutory construction is guided by established rules:
            When construing a statute, our foremost obligation is to
            ascertain and give effect to the intention of the
            legislature, which is obtained primarily from the language
            contained in the statute itself. And we must read statutory
            language in the context of the entire statute and construe
            it in a manner consistent with its purpose.

Id. at 191, 20 P.3d at 624 (quoting Gray v. Admin. Dir. of the

Court, 84 Hawai#i 138, 144, 931 P.2d 580, 586 (1997)).
            It is a cardinal rule of statutory construction that courts
            are bound, if rational and practicable, to give effect to
            all parts of a statute, and that no clause, sentence, or
            word shall be construed as superfluous, void, or
            insignificant if a construction can be legitimately found
            which will give force to and preserve all the words of the
            statute.

County of Kaua#i v. Hanalei River Holdings, Ltd., 139 Hawai#i 511,

526, 394 P.3d 741, 756 (2017) (quoting Camara v. Agsalud, 67 Haw.

212, 215-16, 685 P.2d 794, 797 (1984)).

B.    Family Court Decisions

            Generally, the “family court possesses wide discretion

in making its decisions and those decisions will not be set aside

unless there is a manifest abuse of discretion.”             In re Doe, 95

Hawai#i at 189, 20 P.3d at 622 (citing In Interest of Doe, 84

Hawai#i 41, 46, 928 P.2d 883, 888 (1996)).           “Under the abuse of

discretion standard of review, the family court’s decision will

not be disturbed unless the family court disregarded rules or

principles of law or practice to the substantial detriment of a

party litigant[, and its] decision clearly exceed[ed] the bounds


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of reason.”      In Interest of Doe, 84 Hawai#i at 46, 928 P.2d at

888 (alterations in original).

C.     Findings of Fact and Conclusions of Law

             The family court’s findings of fact are reviewed on

appeal under the “clearly erroneous” standard.             Fisher v. Fisher,

111 Hawai#i 41, 46, 137 P.3d 355, 360 (2006).
             A [finding of fact] is clearly erroneous when (1) the record
             lacks substantial evidence to support the finding, or (2)
             despite substantial evidence in support of the finding, the
             appellate court is nonetheless left with a definite and firm
             conviction that a mistake has been made. “Substantial
             evidence” is credible evidence which is of sufficient
             quality and probative value to enable a person of reasonable
             caution to support a conclusion.

Id.

             “The family court’s [conclusions of law] are reviewed

on appeal de novo, under the right/wrong standard.”              Id. (citing

In re Doe, 95 Hawai#i at 190, 20 P.3d at 623).             Conclusions of

law are “not binding upon an appellate court and are freely

reviewable for their correctness.”           Id. (citing In re Doe, 95

Hawai#i at 190, 20 P.3d at 623).

D.     Credibility of Witnesses

             “[I]t is well-settled that an appellate court will not

pass upon issues dependent upon the credibility of witnesses and

the weight of the evidence; this is the province of the trier of

fact.”     In re Doe, 95 Hawai#i at 190, 20 P.3d at 623 (quoting

State v. Jenkins, 93 Hawai#i 87, 101, 997 P.2d 13, 27 (2000)).


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                            III.   DISCUSSION

          On appeal, LC alleges that the family court erred in 1)

denying LC’s petition to disestablish parentage because the UPA

“requires there to be a genetic link” between LC and the child;

2) deciding that a legal parent-child relationship existed

between LC and the child, because the statutory marriage

presumption does not apply; and 3) even if the marriage

presumption applies, deciding that LC did not rebut the

presumption.

          LC states in her opening brief that “all this case

really comes down to is whether [LC] may be deemed to be the

Child’s legal parent simply because these two women were married

when the Child was conceived through [IUI] and born.”            The answer

to this question is, however, only half of the analysis.            If the

marital presumption of paternity applies to LC, then we must also

determine whether LC rebutted that presumption.           Both questions

present issues of first impression for this court.

          For the reasons stated below, we hold that the UPA’s

marital presumption of paternity equally applies to women in

same-sex marriages.     Because it is undisputed that LC was married

to MG at the time that the child was born, she is presumed to be

the legal parent of the child.       We further conclude that LC did

not rebut the presumption of parentage.

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A.    The marital presumption of paternity applies to LC.

            LC argues that there are two reasons why the UPA’s

presumption of paternity cannot apply to her.            First, LC argues

that the UPA requires a genetic link in order to establish a

legal parent-child relationship, and therefore it is impossible

for LC to be the “father” of the child.12          Second, LC contends

that the MEA was not intended to broaden the scope of the UPA to

apply it to spouses in same-sex marriages.

            The language and purpose of the UPA and the MEA require

us to reject these arguments.         First, the UPA does not require a

genetic or biological connection to establish a legal parent-

child relationship.       Second, the MEA requires that every gender-

specific statutory provision of law regarding marriage be

interpreted in a gender-neutral manner.

      1.    The UPA does not require a biological connection to
            establish a legal parent-child relationship.

            Both the language and the purpose of the UPA indicate

that a genetic or biological connection is not required for a

legal parent-child relationship to exist.           The UPA’s statutory

language indicates that legal parentage may arise even if there


12
      LC appears to make this argument twice in her opening brief. In her
first point of error, LC argues that because the UPA requires a genetic link
between someone like her and the child, the UPA cannot apply to her. In her
second point of error, LC argues that the UPA’s presumption of paternity
“[h]inges on ‘Paternity’ and Genetics.” We construe her assertions to raise
the same argument.

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is no biological connection to the child.           The UPA’s presumption

of paternity provision, HRS § 584-4(a), describes six different

ways in which a person is presumed to be the legal parent of a

child.13   But only one, HRS § 584-4(a)(5) (court-ordered genetic

testing) is plainly based on biology.          The others, such as

written acknowledgment of parentage, consent to be the parent on

a child’s birth certificate, and the presumption at issue here --

marriage to the child’s natural mother -- are not.             Similarly,

the UPA’s list of evidence relating to paternity in HRS § 584-12

is not limited to evidence of a biological connection to the

child.14   Evidence may also include “[a] voluntary, written


13
      See supra note 6.

14
      HRS § 584-12 (2006) provides a non-exhaustive list of evidence relating
to paternity:

            Evidence relating to paternity. Evidence relating to
            paternity may include:
                  (1)   Evidence of sexual intercourse between the
                        mother and the alleged father at any possible
                        time of conception;
                  (2)   An expert’s opinion concerning the statistical
                        probability of the alleged father’s paternity
                        based upon the duration of the mother’s
                        pregnancy;
                  (3)   Genetic test results, including blood test
                        results, weighted in accordance with evidence,
                        if available, of the statistical probability of
                        the alleged father’s paternity;
                  (4)   Medical or anthropological evidence relating to
                        the alleged father’s paternity of the child
                        based on tests performed by experts. If a man
                        has been identified as a possible father of the
                        child, the court may, and upon request of a
                        party shall, require the child, the mother, and
                        the man to submit to appropriate tests;
                  (5)   A voluntary, written acknowledgment of
                                                                (continued...)

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acknowledgment of paternity” (HRS § 584-12(5)) or “all other

evidence relevant to the issue of paternity” (HRS § 584-12(7)).

This indicates that the legal parent determination does not turn

on whether the person has any biological connection to the child.

               Second, this court has previously cited the purpose of

the UPA to hold that legal parentage does not require a

biological connection to the child.             In holding that a mother was

estopped from filing a paternity action against the child’s

biological father after a divorce decree declared another man

(her ex-husband) to be the legal father of the child, this court

noted that even though the defendant was the biological father,

the UPA did not require that a child’s legal father be his or her

biological one.         Doe v. Doe, 99 Hawai#i 1, 7-8, 52 P.3d 255, 261-

62 (2002).        Instead, we said that the UPA was meant “to ensure

that every child, to the extent possible, has an identifiable

legal father.         Although this goal will usually overlap with the

desire of a child to know the identity of his or her biological


14
     (...continued)
                            paternity;
                      (6)   Bills for pregnancy and childbirth, including
                            medical insurance premiums covering this period
                            and genetic testing, without the need for
                            foundation testimony or other proof of
                            authenticity or accuracy, and these bills shall
                            constitute prima facie evidence of amounts
                            incurred for such services or for testing on
                            behalf of the child; and
                      (7)   All other evidence relevant to the issue of
                            paternity of the child.

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father, the two are not always the same.”           Id. at 8, 52 P.3d at

262 (emphasis added).15       Similarly, in Inoue v. Inoue, the ICA

held that a mother was estopped from challenging the legal status

of the child’s presumptive father, even when it was established

that he was not the “birth” father.          118 Hawai#i 86, 94, 185 P.3d

834, 843 (App. 2008), cert. denied, 118 Hawai#i 194, 186 P.3d 629

(2008).

            Therefore, LC is simply incorrect when she contends

that the UPA requires a biological connection in order for a

person to be presumed the legal parent of a child.             To the

contrary, the statutory language and the purpose of the UPA

indicate that presumptions of paternity are not restricted to

persons that share a biological or genetic link with the child.

            Finally, the UPA further suggests that, despite the

gender-specific language in HRS § 584-4(a), the presumptions of

paternity equally apply in determining the existence or

nonexistence of a mother-child relationship.            HRS § 584-21 states

that in actions “to determine the existence or nonexistence of a

mother and child relationship[, i]nsofar as practicable, the



15
      In arguing that the UPA requires some “genetics threshold” in order to
determine the legal parent of a child, LC cites the dissent in Doe, which
instead argued that the UPA’s purpose was to ensure “that every child be
assured of some legal relationship to his or her natural or biological
father.” 99 Hawai#i at 24, 52 P.3d at 278 (Acoba, J., dissenting) (emphasis
in original).

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provisions of [the UPA] applicable to the father and child

relationship shall apply.”       We conclude that it would be

practicable to apply the provisions of HRS 584-4(a) to the mother

and child relationship because, as discussed above, a biological

connection is not necessary to establish a presumption of

parentage.    Therefore, HRS § 584-21 itself suggests that the

presumptions of paternity in HRS § 584-4(a) similarly apply when

determining whether a woman is the legal parent of a child.

     2.     The MEA intended to construe every gender-specific
            statutory provision of law regarding marriage in a
            gender-neutral manner.

            Even if the language of the UPA were not enough to

convince us that the statutory presumptions of paternity apply to

both men and women, the MEA leaves no doubt that the marital

presumption must equally apply to women in same-sex marriages.

The Legislature adopted the MEA in 2013 to “recognize marriages

between individuals of the same sex in the State of Hawai#i.”               H.

Stand. Comm. Rep. No. 4, in 2013 House Journal, at 189.             In so

doing, the Legislature wanted to ensure that any interpretation

of marriage terminology be gender-neutral.          The MEA specifically

provides,

            Interpretation of terminology to be gender-neutral. When
            necessary to implement the rights, benefits, protections,
            and responsibilities of spouses under the laws of this
            State, all gender-specific terminology, such as “husband”,
            “wife”, “widow”, “widower”, or similar terms, shall be
            construed in a gender-neutral manner. This interpretation


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            shall apply to all sources of law, including statutes,
            administrative rules, court decisions, common law, or any
            other source of law.

HRS § 572-1.8 (Supp. 2014) (emphases added).

            The gender-neutral provision speaks for itself: all

laws regarding the rights and responsibilities of spouses must be

interpreted in a gender-neutral manner.16          The marital

presumption of parentage is a “source of law” regarding marriage,

and therefore it must be construed in a gender-neutral manner

pursuant to HRS § 572-1.8.17        Once we apply the gender-neutral

provision of the MEA to the UPA’s marital presumption of

paternity, HRS § 584-4(a) reads: “[a] [person] is presumed to be

the natural [parent] of a child if: (1) [The person] and the

child’s natural mother are or have been married to each other and

16
      Furthermore, legislative history of the MEA reveals that the Legislature
intended that “all rights, benefits, protections, and responsibilities of
parentage derived from a marriage relationship under state law shall apply
equally to all married persons regardless of gender[.]” See H. Stand. Comm.
Rep. No. 4, in 2013 House Journal, at 189 (emphasis added).
      It appears that this provision was not included in the final version of
the statute (and only the more general “gender-neutral provision” of HRS §
572-1.8 remained) because the House Standing Committee believed that the
“language relating to the gender-neutral application of marriage-derived
parentage rights, benefits, protections, and responsibilities [was]
superfluous.” H. Stand. Comm. Rep. No. 4, in 2013 House Journal, at 192.

17
      This interpretation is in conformity with at least one other
jurisdiction that has a similarly-worded marriage equality act. See Wendy G-
M. v. Erin G-M., 985 N.Y.S.2d 845, 860 (N.Y. Sup. Ct. 2014) (“[T]he MEA
mandates that [all laws] are gender neutral with respect to all the legal
benefits, obligations, etc. arising from marriage. In [a previous case, the
Appellate Division] predicated the husband’s parental status on the fact of
marriage, without regard to the husband’s biological connection to the child
or to his fertility in general. To impose the presumption of consent to
[artificial insemination] for couples in a heterosexual marriage, but not for
those in a same-sex one . . . would reverse the gender-neutral approach to New
York’s families canonized in the MEA.”).

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the child is born during the marriage, or within three hundred

days after the marriage is terminated[.]”

          In arguing that the marital presumption of paternity

cannot apply to her, LC contends that applying the MEA’s gender-

neutral provision to the UPA would unfairly discriminate against

women attempting to disprove legal parentage.          This argument is

unavailing.   LC examines HRS § 584-12 (“evidence relating to

paternity”) and argues that if we replace every instance of the

word “father” with “mother” in that provision, only three of the

seven listed types of evidence could be used by a woman to rebut

a presumption of parentage, while a man would still be entitled

to use all seven.    Because some avenues of relief in HRS § 584-12

are closed to a woman, LC argues that applying the MEA to the UPA

would actually discriminate against a woman attempting to

disprove parentage.     But LC ignores the catch-all basis in HRS §

584-12(7), i.e. “[a]ll other evidence relevant to the issue of

paternity of the child.”      This basis leads us to conclude that

any difference in the number of methods available to women and

men to prove parentage are irrelevant, because HRS § 584-12(7)

explicitly permits the use of any relevant evidence to prove (or

disprove) parentage.

          To conclude, Hawaii’s UPA does not require a biological

or genetic link in order to establish a parent-child

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relationship.     To require such a connection would be contrary to

the language and the purpose of the UPA.           Additionally, the MEA’s

“gender-neutral interpretation” provision also requires, when

necessary to implement a right or responsibility of a spouse,

that all gender-specific terminology be construed in a gender-

neutral manner.      See HRS § 572-1.8.      We therefore hold that the

marital presumption of parentage applies equally to women in

same-sex marriages.18      Because it is undisputed that LC and MG

were married at the time that the child was born, LC is presumed

to be the legal parent of the child.

B.    LC did not rebut the presumption of parentage by clear and
      convincing evidence.

            LC next argues that even if she is presumed to be the

legal parent of the child, she “met her burden to rebut the

presumption by clear and convincing evidence,” and therefore

concludes that the family court erred in denying her petition for

disestablishment of parentage.         LC notes that
            the totality of the factual circumstances that existed here
            do not warrant finding the existence of a parent-child
            relationship between LC and the Child because LC did not


18
      While we need not address MG’s additional constitutional argument, see
DW Aina Le#a Dev., LLC v. Bridge Aina Le#a, LLC., 134 Hawai#i 187, 217-18, 339
P.3d 685, 715-16 (2014), at least one other jurisdiction has recently held
that not applying the marital presumption of parentage to same-sex spouses
violates the Fourteenth Amendment to the United States Constitution. See
McLaughlin v. Jones, 401 P.3d 492, 498 (Ariz. 2017) (“The marital paternity
presumption is a benefit of marriage, and following [Pavan v. Smith, 137 S.
Ct. 2075 (2017) and Obergefell v. Hodges, 135 S. Ct. 2584 (2015)] the state
cannot deny same-sex spouses the same benefits afforded opposite-sex
spouses.”).

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          consent to the [IUI] procedure, did not participate in the
          conception or birth of the Child, was not present when the
          Child was born, did not give her name to the Child . . . ,
          and has never acted as co-parent of the [C]hild.

          MG counters that LC “fail[ed] to show that the Family

Court was clearly erroneous in its key finding: she ‘did not meet

her burden of proving by clear and convincing evidence that she

did not consent to [MG] undergoing the artificial insemination

procedure that resulted in her pregnancy and the birth of the

Child.’” (Second alteration in original.)         MG argues that “there

was a lengthy, documented history of joint action by LC and MG

that both predated and postdated [the child’s] conception, all

evidencing LC’s consistent consent.”

          Based on the record of this case, I conclude that the

family court did not err in concluding that LC did not prove, by

clear and convincing evidence, that she did not consent to MG

undergoing an artificial insemination procedure that resulted in

the birth of the child.

     1.   In cases of artificial insemination, one way to rebut
          the presumption of parentage is to demonstrate, by
          clear and convincing evidence, lack of consent to the
          artificial insemination procedure.

          Once the presumption of paternity has been established,

the UPA also provides that it may be rebutted by clear and

convincing evidence:
                A presumption under this section may be rebutted in an
          appropriate action only by clear and convincing evidence.


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          If two or more presumptions arise which conflict with each
          other, the presumption which on the facts is founded on the
          weightier considerations of policy and logic controls. The
          presumption is rebutted by a court decree establishing
          paternity of the child by another man.

HRS § 584-4(b) (2006).

            Both parties agree that one way in which a party may

rebut the presumption of parentage is to demonstrate, by clear

and convincing evidence, that he or she did not consent to the

spouse’s artificial insemination procedure, and operated under

that assumption in the family court and on appeal.           Neither party

challenges the family court’s conclusion of law that “[i]n the

context of a child conceived through artificial insemination by

donor during a marriage, the presumption of legal parentage

incorporates a rebuttable presumption of consent to the

artificial insemination.”

          However, the Majority holds that a spouse cannot rebut

the marital presumption of parentage through demonstrating by

clear and convincing evidence a lack of consent to the artificial

insemination procedure that led to the birth of the child.

Majority at 1.    To the extent that this position was not argued

or briefed by the parties at any point in these proceedings, the

Majority errs in raising sua sponte the validity of this method

of rebuttal on appeal.     Cox v. Cox, 138 Hawai#i 476, 491, 382

P.3d 288, 303 (2016) (Recktenwald, C.J., dissenting) (“We need


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not and should not sua sponte address an issue that was never

raised or disputed by the parties at any point.” (emphasis in

original)).    Moreover, as I interpret the statutory language of

the UPA, I conclude that the UPA does not bar a party from

attempting to rebut the presumption of parentage in an artificial

insemination case by proving that he or she did not consent to

the artificial insemination procedure.

          Accordingly, I respectfully dissent from the Majority’s

decision to hold sua sponte that a spouse may not rebut the

presumption of parentage by demonstrating lack of consent to an

artificial insemination procedure.

          a.     The plain language of HRS § 584-4(b) does not
                 prevent a presumptive parent from rebutting the
                 presumption by demonstrating lack of consent to an
                 artificial insemination procedure.

          If this issue were properly raised, I would agree with

the Majority that evaluating whether a certain method of rebuttal

is permitted begins with the language of HRS § 584-4(b) itself.

Majority at 3.    While it is true that HRS § 584-4(b) does not

provide us with much guidance as to how a presumption of

parentage under HRS § 584-4(a) may be rebutted, it broadly

provides that “[a] presumption under this section may be rebutted

in an appropriate action only by clear and convincing evidence.”

Allowing a presumptive parent to rebut the presumption of


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parentage in a birth by artificial insemination by demonstrating,

by clear and convincing evidence, that he or she did not consent

to the artificial insemination procedure does not conflict with

the plain language of HRS § 584-4(b).

            The Majority, however, contends that the Legislature’s

decision to remove the Uniform Parentage Act’s (1973) artificial

insemination provision from the Hawai#i UPA proves that the

Legislature rejected the use of evidence of non-consent to an

artificial insemination procedure as a means to rebut a

presumption of parentage.        Majority at 8 n.5.      I respectfully

disagree.

            Section 5 of the Uniform Parentage Act (1973) provided

a means to establish parentage in cases of artificial

insemination.19     Specifically, the provision stated that if a

husband consented in writing to his wife’s artificial



19
      Uniform Parentage Act section 5 (Unif. Law Comm’n 1973) provided in
relevant part,

                  (a) If, under the supervision of a licensed physician
            and with the consent of her husband, a wife is inseminated
            artificially with semen donated by a man not her husband,
            the husband is treated in law as if he were the natural
            father of a child thereby conceived. The husband’s consent
            must be in writing and signed by him and his wife. The
            physician shall certify their signatures and the date of the
            insemination, and file the husband’s consent with the [State
            Department of Health], where it shall be kept confidential
            and in a sealed file. However, the physician’s failure to
            do so does not affect the father and child relationship.

(Alteration in original.)

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insemination procedure, he would be treated as the natural father

of the child conceived by that procedure.           Unif. Parentage Act

section 5 (1973).      The Legislature expressly removed section 5

from the bill that eventually became our UPA.            See H. Stand.

Comm. Rep. No. 190, in 1975 House Journal, at 1019.

            From this removal, the Majority concludes that the

Legislature “specifically rejected a requirement of consent to

artificial insemination for a husband to be recognized as the

father of his wife’s child conceived through artificial

insemination.”      Majority at 8 n.5.      But because there is no

evidence in the legislative history explaining why the artificial

insemination provision was not adopted, we can only speculate as

to the reasons for its removal.20

            Moreover, even if the Majority were correct to assume

that the removal of section 5 signaled an intent to reject a

requirement of consent to artificial insemination to become a



20
      For example, the Legislature may have thought that section 5’s formal
consent procedures to establish paternity, i.e. “the husband’s consent must be
in writing and signed by him and his wife,” were unnecessarily restrictive and
against public policy, and thus deleted it from the bill. See Laura WW. v.
Peter WW., 856 N.Y.S.2d 258, 261-62 (N.Y. App. Div. 2008) (stating that even
when New York’s artificial insemination statute could not establish husband’s
paternity because he did not consent in writing, “equity and reason require a
finding that an individual who participated in and consented to [an artificial
insemination procedure] to bring a child into the world can be deemed the
legal parent of the resulting child”).
      This does not necessarily mean that the Legislature meant to entirely
bar a spouse’s consent to the artificial insemination procedure as a means to
establish parentage. And this would not mean that the Legislature meant to
entirely bar non-consent as a means to rebut the presumption of parentage.

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legal parent of the child, it does not follow that the

Legislature also wished to bar a presumptive parent from

rebutting the presumption by demonstrating lack of consent to the

artificial insemination procedure.        As the Majority points out,

section 5 provided another means to establish parentage in

artificial insemination situations, and “was in any event not

intended to provide a method of rebutting parentage.”            Majority

at 11.   Therefore, the removal of this provision does not

inherently indicate an intent to bar a method to rebut the

presumption of parentage.      Moreover, HRS § 584-4(b) itself does

not contain any limiting language, and to the contrary, states

broadly that “[a] presumption under [HRS § 584-4(a)] may be

rebutted in an appropriate action only by clear and convincing

evidence.”

          Because the omission of section 5 from the UPA does not

conclusively demonstrate an intent to bar presumptive parents

from attempting to rebut the presumption by demonstrating lack of

consent to an artificial insemination procedure, I turn, as the

parties did, to the “evidence relating to paternity” provision of

HRS § 584-12 for further guidance.        HRS § 584-12(7) provides that

evidence related to paternity may include “[a]ll other evidence

relevant to the issue of paternity of the child.”           Evidence of

non-consent to an artificial insemination procedure is relevant

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to the issue of parentage, so HRS § 584-12(7) would thus allow

evidence of non-consent to be introduced.

          This leads me to conclude that HRS §§ 584-4(b) and 584-

12(7) would permit a presumptive parent, whether a man or a woman

(see HRS § 584-21), to prove, by clear and convincing evidence,

lack of consent to the artificial insemination procedure as a

means to rebut a presumption of parentage.

          While the Majority acknowledges that the marital

presumption of parentage under HRS § 584-4(a)(1) is rebuttable in

certain circumstances, Majority at 4, it is difficult to see how

the Majority’s approved methods of rebuttal could apply in the

situation here.    First, the Majority notes that the presumption

“can be rebutted by another HRS § 584-4(a) presumption of

parentage if the other presumption ‘is founded on the weightier

considerations of policy and logic.’”        Majority at 4 (citing HRS

§ 584-4(b)).   But because only one presumption exists here, this

ground cannot be used to rebut the presumption of parentage in

this case.

          The Majority also suggests that evidence of the

existence of another common law “parent,” i.e., a “de facto,”

“psychological,” or “intended” parent, or evidence that

disestablishment of parentage is in the best interests of the

child, might perhaps rebut the marital presumption of parentage.

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Majority at 14 n.8.

          But in my view, these methods of rebuttal also do not

provide a person in this situation with a meaningful way to rebut

the presumption of parentage.       First, in the case of another “de

facto” parent, HRS § 584-4(a)(4) already presumes parentage if,

“[w]hile the child is under the age of majority, [the person]

receives the child into [the person’s] home and openly holds out

the child as his [or her] natural child.”         In that situation, HRS

§ 584-4(b) instructs that the presumption “founded on the

weightier considerations of policy and logic controls.”            But as

just noted, this method cannot apply in situations, like here,

where only one presumption in favor of one individual arises.

Second, the Majority already appears to have held that permitting

a spouse to rebut a presumption of parentage based on lack of

consent to an artificial insemination procedure “does not factor

in the best interests of the child.”        Majority at 18-19.

          Where the language of HRS § 584-4(b) does not bar

evidence of non-consent to an artificial insemination procedure

to rebut a presumption of parentage, and where the Legislature’s

decision to remove a means to establish parentage does not

clearly indicate a rejection of a means to rebut a presumption of

parentage, I believe the Majority errs when it concludes that the

UPA bars evidence of lack of consent to an artificial

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insemination procedure as a means to rebut a presumption of

parentage.     This is especially the case when the Majority

provides no other meaningful way in which to rebut the marital

presumption of parentage in a case involving an artificial

insemination procedure.21

            b.    The Legislature’s decision to impose a high burden
                  of proof on any presumptive parent attempting to
                  rebut the presumption of parentage considers the
                  best interests of the child.

            Amongst the many policy arguments the Majority employs

to reject the parties’ assumption that evidence of non-consent to

an artificial insemination procedure could rebut the marital

presumption of parentage, the Majority suggests that such a

method of rebuttal would not be in the best interests of the

child.    Majority at 18-19.      I respectfully disagree.        Because the

Legislature decided to impose a “clear and convincing” standard

of proof on any presumptive parent attempting to rebut a

presumption of parentage, this high burden addresses the

Majority’s concerns regarding the best interests of the child.


21
      While the Legislature might not have made “a distinction regarding the
means by which a parentage presumption can be rebutted based on how a child is
brought into being,” Majority at 14 n.7, issues of consent in situations where
sexual intercourse results in the birth of a child can be evaluated
differently under the UPA.
      In the event that a spouse wishes to disestablish parentage of a child
born by sexual intercourse, a court in that situation may rely on genetic
testing to determine paternity, and in some situations, must order genetic
testing to determine paternity. HRS § 584-13(c) (2006). Genetic testing
procedures are effectively unavailable in artificial insemination cases where
the presumptive parent is not biologically related to the child.

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            The “clear and convincing” standard of proof is defined

as an
            intermediate standard of proof greater than a preponderance
            of the evidence . . . . It is that degree of proof which
            will produce in the mind of the trier of fact a firm belief
            or conviction as to the allegations sought to be
            established, and requires the existence of a fact be highly
            probable.

Kekona v. Abastillas, 113 Hawai#i 174, 180, 150 P.3d 823, 829

(2006) (citations omitted).       As this court stated in Kekona, a

clear and convincing standard of proof is “required to sustain

claims which have serious social consequences or harsh or far

reaching effects on individuals . . . .”          Id. at 181, 150 P.3d at

830.    In these circumstances, the lower “‘preponderance of the

evidence’ [standard] has been expressly disapproved as an

insufficient measure of the proof required.”           Id. (citing Iddings

v. Mee-Lee, 82 Hawai#i 1, 14, 919 P.2d 263, 276 (1996)).

            By imposing a clear and convincing standard of proof

here, the Legislature determined that it would protect the best

interests of the child by making it “difficult” for presumptive

parents to rebut the presumption of parentage.           See Unif.

Parentage Act § 4 cmt. (1973) (“In accordance with current law in

most states relating to the rebuttal of a presumption of

‘legitimacy’, the presumption is difficult to rebut in that proof

must be made by ‘clear and convincing evidence.’”).            Accordingly,

an equivalent burden on the presumptive parent in an artificial

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insemination case to demonstrate that he or she did not consent

to the artificial insemination procedure similarly considers the

best interests of the child.

          This position is shared by other jurisdictions which

have concluded, even in the absence of an artificial insemination

provision, that placing a high burden on a spouse to demonstrate

that he or she did not consent to the artificial insemination

procedure ensures that the best interests of the child are

considered.   For example, in K.S. v. G.S., 440 A.2d 64, 66 (N.J.

Super. Ct. Ch. Div. 1981), the New Jersey court concluded that,

even in the absence of a statutory artificial insemination

provision, “[p]ublic policy considerations seeking to prevent

children born as a result of [artificial insemination] procedures

from becoming public charges . . . require that a presumption of

consent exist and that a strong burden be placed on one seeking

to rebut the presumption.”      Id. at 68.

          Similarly, in In re Baby Doe, 353 S.E.2d 877, 878 (S.C.

1987), the South Carolina Supreme Court also examined spousal

consent to an artificial insemination procedure in the absence of

a statutory provision.     It first looked to other jurisdictions

and noted that “[a]lmost exclusively, courts which have addressed

[issues of artificial insemination] have assigned paternal

responsibility to the husband based on conduct evidencing his

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consent to the artificial insemination.”           Id.   Accordingly, the

South Carolina Supreme Court “[held] that a husband who consents

for his wife to conceive a child through artificial insemination,

with the understanding that the child will be treated as their

own, is the legal father of the child born as a result of the

artificial insemination[.]”        Id.     These cases, while not binding

on this court, indicate that imposing a high burden on a

presumptive parent in an artificial insemination case to prove,

by clear and convincing evidence, that he or she did not consent

to the artificial insemination procedure more closely adheres to

the statutory language and intent of HRS § 584-4(b).22

            HRS § 584-4(b) provides that a presumptive parent must

be allowed an opportunity to rebut the presumption of parentage.

Nothing in the UPA’s statutory language nor in the legislative

history indicates to me that a presumptive parent in a birth by

artificial insemination is barred from presenting evidence that

he or she did not consent to the artificial insemination

procedure to rebut the presumption.          Moreover, the Majority does



22
      This position does not conflict with our opinion in Doe. I generally
agree that HRS Chapter 584 was adopted “to ensure that every child, to the
extent possible, has an identifiable legal father.” Doe, 99 Hawai#i at 8, 52
P.3d at 262 (emphasis added). The language of HRS § 584-4(b) mirrors that
concern by permitting a spouse to rebut the presumption of parentage “only by
clear and convincing evidence.”
      Indeed, no court of which I am aware has actually concluded that a
spouse rebutted the presumption of parentage by demonstrating lack of consent
to an artificial insemination procedure. See Section III(B)(2) infra.

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not provide any meaningful way to rebut the marital presumption

where only one presumption arises, and where an artificial

insemination procedure leads to the birth of a child.              This

effectively makes a rebuttable presumption irrebuttable, and

cannot be what the Legislature intended.23

             While I would not have addressed this issue in the

first instance, for all of these reasons, I would hold that one

way that a presumptive parent may rebut the marital presumption

of parentage in cases of artificial insemination is to

demonstrate, by clear and convincing evidence, that he or she did

not consent to the spouse’s artificial insemination procedure.

      2.     LC did not demonstrate by clear and convincing evidence
             that she did not consent to MG’s artificial
             insemination procedure.

             Because nothing in the statutory language of the UPA

bars a presumptive parent in an artificial insemination case from

attempting to rebut the presumption of parentage by proving that

he or she did not consent to the artificial insemination

procedure, I also address whether LC met her necessary burden of

proof.     Keeping in mind that the UPA intended to make it

difficult to rebut a presumption of parentage, see Unif.


23
      I agree with the Majority and note that the Legislature can provide
further guidance on establishing and rebutting the presumption of parentage in
situations where children are born by artificial insemination. Majority at
14.

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Parentage Act § 4 cmt. (1973), I conclude that LC did not prove,

by clear and convincing evidence, that she did not consent to the

artificial insemination procedure that led to the birth of the

child.

            Here, the family court concluded that
            [LC] did not meet her burden of proving by clear and
            convincing evidence that she did not consent to [MG]
            undergoing the artificial insemination procedure that
            resulted in her pregnancy and the birth of the Child. [LC]
            therefore has failed to rebut the presumption under HRS §
            584-4(a)(1) that she is a legal parent of the Child.

I agree.    The record demonstrates that LC did not provide clear

and convincing evidence that she did not consent to the

artificial insemination procedure.          In fact, her actions before

and after MG’s pregnancy indicate that she wished to be the

child’s parent.

            For instance, text messages between LC and MG while LC

was deployed demonstrate that LC acknowledged and assented to the

pregnancy.24    When MG texted LC saying she was taking fertility


24
      While the parties did not, at any time, assert the spousal privilege or
raise any argument regarding confidential marital communications at trial or
on appeal, the Majority notes that Hawai#i Rules of Evidence (HRE) Rule
505(b)(2) might prevent private communications like text messages from being
used as evidence when one party refuses to disclose them. Majority at 15-17.
Of course, in this case, both parties submitted evidence of their
communications and texts, so they waived their right to keep these
communications confidential.
      Moreover, if a party chooses to exercise the confidential marital
communication privilege, its non-disclosure in a proceeding to disestablish
parentage would make it more difficult for a spouse to prove non-consent to an
artificial insemination procedure. This is consistent with the purposes of
HRS § 584-4(b), and in my view, not a convincing reason to bar evidence of
non-consent to an artificial insemination procedure to rebut a presumption of
parentage.

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pills and ordering vials, LC responded “K @ pills.”           When MG

later texted LC that she was pregnant, LC responded that she

wanted to “rub [MG’s] tummy and feel our baby,” and was excited

to tell her family.

           Furthermore, LC took additional actions that evidenced

an intent to be the mother of the child –- she sent a loving note

and poem to MG noting that while MG’s body and moods would

change, “[LC and the baby] will love [her] through it all.”             When

LC returned home from deployment, she accompanied MG to an

ultrasound appointment and a lamaze class.

           While LC claimed that she explicitly withdrew her

consent to the IUI procedure in a fax to Shady Grove sent on

January 1, 2014 (before MG conceived the child), the clinic

received the fax on December 9, 2015 (after MG gave birth to the

child).   The family court found no credible evidence that the

clinic or MG received the letter before the child was born.

           Finally, LC’s attempts to distinguish her case from

other cases concluding that the spouse failed to rebut the

presumption of consent to artificial insemination are unavailing.

In fact, an examination of the evidence in this case leads me to

conclude that the cases LC attempts to distinguish are

indistinguishable.    See Wendy G-M., 985 N.Y.S.2d at 847

(concluding that the same-sex spouse of a mother who gave birth


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to a child was the legal parent because the record demonstrated,

inter alia, that the spouse attended pre-birth classes,

participated in baby showers, and celebrated the impending birth

on social media);    Laura WW., 856 N.Y.S.2d at 263 (determining

that the husband failed to rebut the presumption of consent

because he was aware that his wife was preparing for an

artificial insemination procedure and “proffered no evidence that

he took any steps before the [artificial insemination] was

performed to demonstrate that he was not willing to be the

child’s father”); K.S., 440 A.2d at 66-67 (concluding that the

husband consented to the artificial insemination procedure even

when his wife became pregnant fifteen months after the husband’s

initial consent because he accompanied her to the artificial

insemination procedure).

          Here, LC attended pre-birth classes, was aware that MG

was taking steps to become pregnant by artificial insemination,

did not proffer any credible evidence that she took any steps to

withdraw her consent to the artificial insemination procedure,

and was so excited when MG told her of the pregnancy that she

couldn’t wait to tell her family.

          Therefore, on this record, I conclude that LC did not

prove by clear and convincing evidence that she did not consent

to MG’s artificial insemination procedure that led to the birth


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of the child.   The family court did not err in concluding the

same.

                            IV.    CONCLUSION

          In 2013, the Legislature adopted the MEA to recognize

marriages between individuals of the same sex, and granted those

couples the same rights, benefits, and protections enjoyed by

heterosexual married couples.       With those rights came

responsibilities.    See HRS § 572-1.8.      Perhaps the greatest of

these are the responsibilities of parentage.          A man is presumed

to be the legal parent of a child if he and the child’s natural

mother are married.     HRS § 584-4(a)(1).      We now hold that this

presumption of parentage applies equally to a woman who is

married to the child’s natural mother.

          Accordingly, the family court did not err in concluding

that the UPA’s marital presumption of parentage applies to LC.

LC also failed to rebut the presumption of parentage.            Therefore,

the family court’s November 1, 2016 Decision and Order denying

LC’s request for disestablishment of legal parentage is affirmed.

Rebecca A. Copeland for                  /s/ Mark E. Recktenwald
petitioner-appellant LC
                                         /s/ Paula A. Nakayama
Peter C. Renn, pro hac vice,
and Christopher D. Thomas for            /s/ Sabrina S. McKenna
respondent-appellee MG
                                         /s/ Richard W. Pollack
Clyde J. Wadsworth for amicus
curiae State of Hawai#i                  /s/ Michael D. Wilson


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