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IN THE COURT OF APPEALS STATE OF INDIANA
No. 10A04-9302-JV-53
EDWARD STRAUB, ) ) Appeal from the Appellant, ) Clark Circuit Court (Respondent Below) ) ) vs. ) ) FRANCINE TODD, ) The Honorable ) Daniel Donahue, ) Judge ) Appellee, ) Cause No. 10C01-9101-JP-001 (Petitioner Below) )
BRIEF OF APPELLANT
S. FRANK MATTOX MATTOX & MATTOX 420 Elsby Building P. O. Box 1203 New Albany, Indiana 47151-1203 (812) 944-8005 Ind. Sup. Ct. #10093-22 Attorney for Appellee
TABLE OF CONTENTS
Page
TABLE OF CONTENTS i
TABLE OF CITATIONS, STATUTES AND OTHER AUTHORITIES ii
I. STATEMENT OF THE ISSUES 1
II. STATEMENT OF THE CASE 2
III. FACTS RELEVANT TO ISSUES PRESENTED FOR REVIEW 4
IV. SUMMARY OF ARGUMENT 5
V. ARGUMENT 6
VI. CONCLUSION 12 TABLE OF CITATIONS, STATUTES AND AUTHORITIES
Page(s)
Citations
Alber v. Standard Heating and Air Conditioning, Inc. , 476 N.E.2d 507 (Ind. App. 1985) . . . . . . . . . . . Allstate Ins. Co. v. Boles , 481 N.E.2d 1096 (Ind. 1985). .
American Underwriters Inc. v. Turpin , 273 N.E.2d 761, 149 Ind.App. 473 (1971) . . . . . . . . . . . . . .
Brant Const. Co. v. Lumen Const. Co. , 515 N.E.2d 868 (Ind.App. 1987) . . . . . . . . . . . . . . . . . . .
Cal. Hirsch & Sons Iron and Rail Co. , 96 N.E. 807, 50 Ind. App. 59 (1911). . . . . . . . . . . . . . . .
Citizens Progress Co. v. James O. Held & Co., Inc. , 438 N.E.2d 1016, 1021 (Ind.App. 1982) . . . . . . . .
City of Crown Point v. Lake County , 510 N.E.2d 684, 687 (Ind. 1987) . . . . . . . . . . . . . . . . . . . . .
Craig v. Boren , 429 U.S. 190 (1976). . . . . . . . . . . .
Davis v. Davis , (1992), 842 S.W.2d. 588, cert. denied , 61 U.S.L.W. 3581 (1993) . . . . . . . . . . . . . . . . .
Dept. of Financial Institutions v. Holt , 108 N.E.2d 629, 231 Ind. 279 (1952) . . . . . . . . . . . . . . . .
Einsenstadt v. Baird , 405 U.S. 438 (1972). . . . . . . . .
Galiher v. Cadwell , 145 U.S. 368 (1892) . . . . . . . . .
Glasgo v. Glasgo , 410 N.E.2d 1325 (Ind.App. 1980). . . . .
Griswold v. Connecticut , 381 U.S. 479, 484 (1965). . . . .
Harris v. McRae , 448 U.S. 297 (1980) . . . . . . . . . . .
Hubbard v, First State Bank Bourbon , 114 N.E. 642, 67 Ind.App. 47 (1916). . . . . . . . . . . . . . . . . .
Hybarger v. American States Ins. Co. , 498 N.E.2d 1015 (Ind.App. 1986) . . . . . . . . . . . . . . . . . . .
In Re Interest of R.C. , 775 P.2d 27 (Colo. 1989) . . . . .
In re Adoption of Force , 131 N.E.2d 157 (1956) . . . . . .
Indemnity Ins. Co. of North America v. Koontz-Wagner Elec. Co. , 233 F.2d 380 (7th Cir. 1956) . . . . . . .
Keller v. Indiana Department of Revenue , 530 N.E.2d 787 (Ind. Tax Ct. 1988) . . . . . . . . . . . . . . . . .
Kruse Classic Auction Co., Inc. v. Aetna Cas. & Sur. Co. , 511 N.E.2d 326 (Ind. App. 1987), reh. den., transfer den. . . . . . . . . . . . . . . . . . . . .
Loudermilk v. Casey , 411 N.E.2d 1379 (Ind.App. 1982) . . .
Masson v. Cheese Corp. v. Valley Lea Dairies Inc. , (1980), Ind. App., 411 N.E.2d 716. . . . . . . . . . . . .
McIntyre v. Crouch , 780 P.2d 239 (Or. App. 1989) . . . . .
Miss. Univ. for Women v. Hogan , 458 U.S. 718 (1982). . . .
Nestor v. Kapetanovic , 573 N.E.2d 457 (1991) . . . . . . .
Nill v. Nill , (1992), Ind. App., 584 N.E.2d 602. . . . . .
Pickett v. Pickett , 470 N.E.2d 751 (Ind. App. 1984). . . .
Planned Parenthood of Missouri v. Danforth , 428 U.S. 52 (1976) . . . . . . . . . . . . . . . . . . . . . . .
Portman v. Steveco , 453 N.E.2d 284 (Ind. App. 1983). . . .
Reilly v. Robertson , 360 N.E.2d 171, 266 Ind. 29, cert. denied 434 U.S. 825 (1977). . . . . . . . . . . . . .
Roark v. Roark , (1990), Ind. App., 551 N.E.2d 865. . . . .
Roe v. Wade , 410 U.S. 113 (1973) . . . . . . . . . . . . .
Shinall v. Pergeorelis , 325 So.2d 431 (Fla. App. 1976) . .
State ex rel Mavity v. Hickey , 224 Ind. 364 (1946) . . . .
Swain v. Swain , 576 N.E.2d 1281 (Ind. App. 1991) . . . . .
Wilson Leasing Co. v. Gadberry , 437 N.E.2d 500 (Ind. App. 1982) . . . . . . . . . . . . . . . . . . . . . . . .
Zebrowski and Assoc., Inc. v. City of Indianapolis , 457 N.E.2d 259 (Ind. App. 1983) . . . . . . . . . . . . .
Statutes
I.C. 31-8-2-1. (1992) . . . . . . . . . . . . . . . . . . . . .
I.C. 31-8-1-4. (1992) . . . . . . . . . . . . . . . . . . . . .
I.C. 31-3-1-6(g)(2)(A) (1992) . . . . . . . . . . . . . . . . .
Constitutional Provisions
Indiana State Constitution Art. I, §23. . . . . . . . . . . . .
Indiana State Constitution Art. I, §24. . . . . . . . . . . . .
U.S. Constitution, Fourteenth Amendment . . . . . . . . . . . .
Other Authorities
4 I.L.E. Constitutional Law §155 . . . . . . . . . . . . . . .
4 I.L.E. Constitutional Law §328. . . . . . . . . . . . . . . .
6 I.L.E. Contracts §84 . . . . . . . . . . . . . . . . . . . .
6 I.L.E. Contracts §31, §335 (1958) . . . . . . . . . . . . . .
13 I.L.E. Evidence § 185 (1958) . . . . . . . . . . . . . . . .
Uniform Parentage Act §5 . . . . . . . . . . . . . . . . . . .
Families in Flux: New Approaches to Meeting Workforce Challenges for Child, Elder, & Health Care in the 1990s, Sar A. Levitan & Elizabeth A. Conway, 1990 (BNA) . . . . .
Reproductive Technologies, "Reproductive Technologies and the Deconstruction of Motherhood ", by Michelle Stanworth (Basil Blackwell Ltd, ed. by Michelle Stanworth), 1987, p. 15-16.
Reproductive Technologies, Surrogacy & Feminist Notions of Motherhood , Juliette Zipper and Selma Sevenhuijsen, 1987 .
Surrogate Motherhood, The Legal and Human Issues, "Do New Reproductive Techniques Threaten the Family" , (Harvard University Press 1990), by Marsha A. Field . . . . . . . .
Surrogate Motherhood, The Legal and Human Issues, "Constitutional Arguments - For and Against" , (Harvard University Press 1990), by Marsha A. Field . . . . . . . . . . . . . . . . . . . . I. STATEMENT OF THE ISSUES
ISSUES
1. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN HOLDING THAT THE PARTIES' VOLUNTARY AGREEMENT WAS VOID AS AGAINST PUBLIC POLICY?
2. WHETHER THE PARTIES' AGREEMENT IS AN ENFORCEABLE INDEMNIFICATION AGREEMENT BY AND BETWEEN EDWARD STRAUB AND FRANCINE TODD?
II. STATEMENT OF THE CASE
Francine Todd is a well-educated woman who is currently working on her doctorate degree. (R. at 374-75) Edward Straub and Todd met in 1983 while both were teaching at the same elementary school. (R. at 387) Todd, then age 33, began dating Straub, then age 55, in 1985. (R. at 75, Todd depo. at 7) After Todd and Straub had been dating for over a year, they became sexually active during January of 1986. (R. at 75, Todd depo. at 7) Of significance, Todd and Straub used contraception until December of 1986. (R. at 435) Although Todd indicated that it was not her sole intention to get pregnant, she stated that in 1986 she intended to marry another individual, Ed Miller, simply because she wanted a child. (R. at 331-33) According to Todd, she and Ed Miller had intercourse more than once, but Todd insisted that intercourse take place while she was ovulating. (R. at 75, Todd depo. at 34) Although Todd had talked with her doctor about artificial insemination, her doctor told her that it would not work for her. (R. at 385-86) In December of 1986, Todd admits that she voluntarily entered into a written agreement with Straub. (R. at 401-02) The handwritten contract provided that in consideration of supplying spermatozoa so that Todd could become impregnated, Todd would not hold the unnamed donor responsible for later child support, and would completely protect the identity of the sperm donor. (R. at 389) Todd told Straub that she would tell the child that the father was a sperm donor and that Todd couldn't find out the name of the donor. (R. at 423) Todd also stated that the agreement was designed to prevent future interference by putative fathers. (R. at 399) The agreement stated: I, Francine Todd in sound mind and forethought have decided not to marry, but would like to have a baby of my own. For support financially and emotionally, I have approached several men who will not be held responsible financially or emotionally who's [sic] names will be kept secret for life. For Todd, the purpose of this agreement was specifically for procreation. In the exact words of Todd: "I had had a stroke; I'd had a divorce; I'd fallen in love with someone who was not good for me, Ed Straub; I was afraid of another bad marriage. Yes, I wanted a child..." (R. at 380-81) Todd admitted that her stroke was related to her failed marriage and the loss of her child from the former marriage. (R. at 393) Todd had previously been in an abusive relationship and adamantly wished to avoid such problems in the future. (R. at 399) In order to protect Todd, Straub agreed not to disclose the specific circumstances of Todd's pregnancy; Todd represented to her coworkers that she had become artificially inseminated at a sperm bank. (R. at 425) Todd stated that both she and Straub relied upon the handwritten agreement and that, at the time the contract was entered into, both parties believed the contract was legally binding on both parties. (R. at 390-91, 401) In reliance upon this agreement, Straub stopped using contraceptive devices and Todd became pregnant. (R. at 435) Todd's child, Briley Michelle Todd, was born on November 27, 1987. (R. at 329) Although Todd and Straub continued to see each other on and off until December of 1990, Todd made no mention of any expectation for future support. (R. at 445) However, Todd's attitude changed, according to a letter to Straub, because Todd found out that Straub was faking ejaculation in order to prevent Todd from becoming pregnant. (R. 75, Todd depo. at 22) In clear breach of the parties' agreement, Francine Todd filed a PETITION TO ESTABLISH PATERNITY OF MINOR CHILD AND TO PROVIDE FOR ITS SUPPORT on January 7th, 1991 on behalf of Todd's daughter, Briley Mitchell Todd. (R. at 10) Todd alleged that Edward Straub was the father of Briley Michelle Todd. Edward Straub denied Todd's allegations and filed a counterclaim against Todd for her breach of the parties' agreement. (R. at 51) After hearing evidence from the parties on September 24th, 1992, the Honorable Daniel Donahue issued the following Order on October 19th, 1992. (Retype Findings of Fact, etc) (R. at 264) On November 6th, 1992, Edward Straub filed his MOTION TO CORRECT ERRORS. (R. at 274) On November 17th, 1992, Edward Straub filed his praecipe with the trial court. (R. at 235) On December 16th, 1992, the trial court denied Straub's Motion to Correct Errors. ( R. at 321) On February 11th, 1993, Edward Straub filed the Record of Proceedings with the Court of Appeals.
III. FACTS RELEVANT TO ISSUES PRESENTED FOR REVIEW The trial court specifically found that Francine Todd "desperately wanted another child" following the death of her first child. (R. at 264) The trial court also found that, due to his age (58), Edward Straub did not want the responsibility of another family. (R. at 264) Edward Straub agreed to attempt to impregnate Francine Todd after Todd agreed to hold Edward Straub financially and emotionally harmless for any children born of their union. (R. at 264) The trial court noted that "Both Francine and Edward relied upon the handwritten documents as an agreement between them whereby Francine would not hold Edward accountable, financially or emotionally for any child resulting from their sexual conduct. Edward additionally agreed not to disclose the specific circumstances of Francine's pregnancy." (R. at 264) Although the trial court held that the parties' agreement was void as it related to the support of Briley Michelle Todd, the trial court did not address the issue of Francine Todd's liability to Edward Straub for breaching the parties' agreement. (R. at 264) IV. SUMMARY OF ARGUMENT Edward Straub respectfully submits that the parties' agreement should be enforced under well-established contractual, constitutional and/or equitable principles. The agreement was supported by valid consideration which was not solely predicated upon sexual services. Both parties believed that the contract was binding. Only after the parties executed the agreement did the parties forego contraception. Although the courts have the ability to void contracts which violate established principles of public policy, there is no express public policy which precludes the parties from making important procreational decisions. It is clear that our societal values have changed and will continue to change in the future since the human condition mandates change on a biological, legal, and concomitantly social level. Absent a compelling public policy or state regulation, in fact, this court should hold the parties to their bargain The parties' agreement also reinforces many fundamental federal and state constitutional rights, including the right of privacy, equal protection, and freedom to contract. The parties actively and consciously decided how they would produce and raise this child. By failing to enforce the parties' agreement, a court would be denying the right of the individual to decide if, when, and under what circumstances they could donate semen, be inseminated, or even make the fundamental decision to procreate. Even if the court hold that the agreement is unenforceable against the minor child, this should not preclude Edward Straub from seeking indemnification or other relief from Francine Todd. Although Francine Todd may wish that Edward Straub would take an active role in Briley Michelle Todd's life, the court may only grant monetary relief. Francine Todd expressly bargained for Straub's waiver of his parental rights. Francine Todd may not now avail herself of the benefits of the parties' labor, while denying the liabilities inherent therein. V. ARGUMENT 1. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY HOLDING THAT THE PARTIES' AGREEMENT CONTRAVENED PUBLIC POLICY BECAUSE THE AGREEMENT WAS VALID UNDER CONTRACTUAL, CONSTITUTIONAL, AND EQUITABLE PRINCIPLES. As the trial court made special findings of fact under T.R. 52, the Court need only to ascertain whether the evidence supports the findings and whether the findings support the judgment. Nill v. Nill , (1992), Ind. App., 584 N.E.2d 602. The Court of Appeals may reverse the trial court if the Court finds that, after reviewing the record, the trial court's judgment is clearly erroneous. Id. A finding is clearly erroneous if the Court's review of the record leaves the appellate court with a definite and firm conviction that a mistake has been made. Id. ; Roark v. Roark , (1990), Ind. App., 551 N.E.2d 865; Masson v. Cheese Corp. v. Valley Lea Dairies Inc. , (1980), Ind. App., 411 N.E.2d 716. As the facts before the trial court clearly revealed that the parties not only understood the nature of their agreement, but that both parties relied upon the agreement to their detriment the trial court erred in finding that the agreement violated public policy.
A. THE AGREEMENT BETWEEN TODD AND STRAUB SHOULD BE UPHELD BASED UPON FUNDAMENTAL CONTRACT PRINCIPLES .
Under Indiana law, a contract arises from a proposal made by one individual and its acceptance by another individual. Cal. Hirsch & Sons Iron and Rail Co. , 96 N.E. 807, 50 Ind. App. 59 (1911) A promise to a contract must be supported by valid consideration, which may consist of an act or forbearance, or another promise. Loudermilk v. Casey , 411 N.E.2d 1379 (Ind.App. 1982); 6 I.L.E. Contracts §31, §335 (1958) The contract between Todd and Straub meets all the requirements for a valid and legally enforceable contract in the state of Indiana.
1. The contract between Todd and Straub is supported by several legitimate forms of consideration in addition to the mere donation of spermatozoa. Although contracts in which sexual services serve as consideration are unenforceable and void as against public policy, legal provisions of such contracts may be enforced if severable. Glasgo v. Glasgo , 410 N.E.2d 1325 (Ind.App. 1980) Aside from the underlying relationship, Straub made two promises: (1) An agreement to relinquish any parental rights in the child, if conceived.
(2) Complete confidentiality of the sexual relationship to protect Todd at work since she had represented to her coworkers that she had been artificially inseminated.
Todd also made two promises to Straub: (1) Hold Straub harmless for child support.
(2) Keep confidential the nature of the relationship and his identity as a putative father.
Edward Straub gave and received more than sufficient legal consideration. Sexualintercourse was not the source of legal consideration in that Edward Straub's forbearance from any contact with the child or enforcing any visitation rights or any other rights he possessed under Indiana law constitutes sufficient legal consideration to support the parties' contract. In addition, Edward Straub testified that he had also lost a child and sincerely wanted to assist Francine Todd with her attempt to replace the child tragically lost and so desperately wanted. Even if the consideration for a contract appears slight, the Court will not weigh the adequacy of the consideration. U.S. v. Stump Home Specialties Mfg., Inc. , (7th Cir. 1990), 905 F.2d 1117; see also , Harrison-Floyd Farm Bureau Co-Op Ass'n Inc. v. Reed , 546 N.E.2d 855 (the doing of an act by one at the request of another which may be detrimental inconvenience, however slight, is legal consideration for a promise by such requesting party); Prell v. Trustees of Baird and Warner Mortg. and Realty Investors , (1979), 386 N.E.2d 1221, 179 Ind. App. 642 (a promise is a valuable consideration in contract) It is clear that Francine Todd, the promisor, received a valid benefit and that Edward Straub, by promising complete confidentiality and waiving his parental rights, suffered a legal detriment. The Indiana cases which have found inadequate consideration are clearly distinguishable. In Spickelmier Industries, Inc. v. Passender , Ind. App., 359 N.E.2d 563 (1977), the court ruled that an employee could not enforce a subsequent promise by his employer to pay him a year-end bonus for the year 1971 when the company later decided it could not afford to pay the bonus to its employees. The court stated, "The promise of a year-end bonus was made after Passander had already performed the terms of his 1971 employment contract." Id . at 565. The employee in Spickelmier performed no additional consideration, and only performed what was required by his original contract. In fact, the court states that the plaintiff's performance of his 1971 employment contract was not made in reliance of receiving a year-end bonus. Id . Therefore, the additional promise was merely gratuitous and, therefore, could not provide valid consideration. In the case at bar, Edward Straub's agreement with Francine Todd was not gratuitous and it is plain that Edward Straub relied on the terms of his agreement with Francine Todd. Edward Straub would have never engaged in unprotected sexual intercourse with Francine Todd if he had known that Francine Todd would not abide by the very terms she insisted upon. 2. The parties' conduct evidences an intent to be bound by the agreement. The practical reality for many single women who desire to become pregnant outside of a traditional marital relationship is that many doctors refuse to perform an artificial insemination procedure for a single woman. See Surrogate Motherhood, the Legal and Human Issues, "Do New Reproductive Techniques Threaten the Family , by Marsha A. Field (Harvard University Press 1990) at 35. Although the enforceability of a contract is a question of law, the court considers the intent of the parties as illustrated by the language used by the parties and the subsequent conduct of the parties. Brant Const. Co. v. Lumen Const. Co. , 515 N.E.2d 868 (Ind.App. 1987); Hybarger v. American States Ins. Co. , 498 N.E.2d 1015 (Ind.App. 1986). In the present case, both Francine Todd and Edward Straub relied upon and acted upon the agreement. Edward Straub maintained the confidentiality of their relationship and avoided any involvement with Briley Michelle Todd. Francine Todd told outsiders that she had been artificially inseminated and did not ask Edward Straub for any financial support until three years after the child was born. For a period of three years, the parties conformed to the letter of their agreement. Although the parol evidence rule prevents a writing from being contradicted by prior writings and oral statements, the rule is inapplicable when additional facts are necessary to show the nature and extent of the contract. Citizens Progress Co. v. James O. Held & Co., Inc. , 438 N.E.2d 1016, 1021 (Ind.App. 1982); 13 I.L.E. Evidence § 185 (1958) Parol evidence is also admissible to ascertain the intent of the contracting parties. Hubbard v. First State Bank Bourbon , 114 N.E. 642, 67 Ind.App. 47 (1916). In this case, the failure to specifically identify the respective parties is not fatal due to the fact that one of the promises made by Todd was that of the confidentiality of the sperm donor. Todd admitted that she intended and actually considered Straub to be a party to the agreement. This fact is underscored by Todd's admission that the written agreement, which does not specifically contain Straub's name, is penned in his handwriting.
3. The parties' does not violate any established public policies Although contracts which violate public policies are considered void, "public policy must change with the times, and, in the absence of legislation, the question of the social policy that is to be effected by a decision on the validity of a contract is committed directly to the courts." 6 I.L.E Contracts §84; see also Allstate Ins. Co. v. Boles , 481 N.E.2d 1096 (Ind. App. 1985) (whenever a court considers invalidating contract on public policy grounds, it must always weigh in balance the parties' freedom to contract); American Underwriters Inc. v. Turpin , 273 N.E.2d 7661, 149 Ind. App. 473 (1971) (only in cases that are substantially free from doubt should a court exercise its power to declare a contract void for being in contravention of public policy.) The Indiana State legislature recently passed legislation pertaining to surrogate agreements wherein a woman agrees to bear a child for the benefit of another individual. I.C. 31-8-1-4. The new Indiana surrogate statute provides that "it is against public policy to enforce any term of a surrogate agreement that requires a surrogate to . . . waive parental rights or duties to a child." I.C. 31-8-2-1. As important as what the statute specifically says, it is of special significance what the statute does not say . The surrogate statute deals only with the rights of the surrogate, not the rights of the other parties to the agreement. The statute protects the rights of the surrogate mother who carries the child to term. It is one thing to say that contracts which deny women the right to make fundamental reproductive decisions are against public policy. It is quite another thing to say that a court may not enforce a non-surrogate contract which is designed to ensure the rights of the mother. At least two courts have upheld an agreement between a sperm donor and an unmarried recipient which varied from applicable statutory rights. In Re Interest of R.C. , 775 P.2d 27 (Colo. 1989); McIntyre v. Crouch , 780 P.2d 239 (Or. App. 1989) In both of the foregoing cases, a state statute appeared to extinguish the rights of a sperm donor. However, the court specifically found that the parties could agree to change such rights . In Re Interest of R.C. , supra. , involved E.C., an unmarried woman who desired to have a child out of wedlock. E.C. requested and received semen from her friend J.R. on several occasions and eventually became pregnant with the assistance of her gynecologist. Shortly after her son, R.C., was born, E.C. learned that she might be able to extinguish J.R.'s rights to the child and subsequently denied J.R. visitation promoting a paternity suit filed by J.R. Although the trial court granted E.C. summary judgment terminating J.R.'s rights in the child, the Supreme Court of Colorado reversed the trial court's grant of summary judgment based upon its deference to the parties' preconception intent and expectation of the parties. The Colorado Supreme Court observed: A number of commentators have concluded that the intent of the known donor and unmarried recipient is relevant to a determination of parental rights under the model UPA. See , Andrews, Legal Aspects of New Reproductive Technologies , 29 Clinical Obstetrics & Gynecology 190, 200 (1986) (as artificial insemination laws evolve, they "should take the approach of allowing the parties' preconception intent to govern paternity, possibly requiring that some documentation of that intent be filed with the state"); Kern & Ridolfi, The Fourteenth Amendment's Protection of a Woman's right to Be a Single Parent through Artificial Insemination by Donor , 7 Woman's Rts.L.Rep. 251, 256 (1982) (if custody suit between unmarried recipient and known donor were to arise, "the court may view the expectations (or intent) of the parties as relevant"); Vetri, Reproductive Technologies and United States Law , 37 Int'l & Comp.L.Q. 505,514 (1988) ("We use the intent of the parties when the woman is married in determining parental responsibilities, and should do so in the rare cases when the woman is unmarried."); Note, Artificial Insemination: Donor Rights in Situations Involving Unmarried Recipients , 26 J.Fam.L. 793, 806 (1988) (in situations where a known donor is involved with an unmarried recipient, a court will consider "the familial expectations" of the donor "with the intention of the donor toward the resulting child at the time of insemination being a key factor") . . In the case at bar, the preconception intent and conduct of the parties is abundantly clear and was even reduced to a written contract . Straub was to relinquish any parental rights to the child and maintain confidentiality of the paternity of the child to protect Todd at work since she had represented to her co-workers that she had been artificially inseminated. Todd's agreement was hold Straub harmless for child support and maintain strict confidentiality as to Straub's identity as the child's father. Clearly, this Court is justified in strictly enforcing the agreement between Todd and Straub based upon basic principles of contract law and the evolving case law in this area which emphasizes the preconception intent and agreement of the parties involved on a case by case basis. A more recent case similarly underscores the emphasis the higher courts of our country have placed upon the preconception intent of the parties. As recent as June 1, 1992, the Supreme Court of Tennessee in a highly publicized opinion held in a 41 page unanimous ruling that a woman could not force her husband to become a father by thawing frozen embryos against his wishes. In Davis v. Davis , (1992), 842 S.W.2d. 588, cert. denied , 61 U.S.L.W. 3581 (1993), Justice Martha Craig Daugherty wrote for the majority, "We conclude that the answer to this dilemma turns on the parties' exercise of their constitutional right to privacy." The gist of this important, but currently unpublished opinion, is that in each case, the interest of both parties should be weighed. In short the Tennessee Supreme Court held that being a parent to a child is such a significant responsibility that it should not be forced upon anyone. A copy of the Davis decision is attached hereto and incorporated by reference. Society has traditionally been concerned with the right of individuals to make important decisions about procreation. Society must condemn disguised attempts at prostitution in the guise of procreation. It is also important that society not bear the costs of unwanted pregnancies and that society not allow children to be treated as mere chattels, to be sold to the highest bidder in the market place. The essential inquiry is the consideration of what is in the best interests of the woman and the child involved. None of these societal concerns is endangered by the agreement between Todd and Straub in this case. It is undisputed that both parties understood the agreement and relied upon it. (R. at 264) Todd decided to exercise her fundamental right to bear a child, but realized that Straub would not facilitate that decision without assurances regarding his future responsibilities. It is abundantly clear that, but for the agreement, Straub would never have engaged in unprotected intercourse with Todd and concomitantly, that young Briley Michelle Todd never would have been born. It is irrefutable that Straub has relied to his clear detriment in this matter. The conduct and statements of the parties refute any inference of an arrangement similar to prostitution. Todd has never argued that she is unable to provide financially for her child. In fact, Todd has provided for her child for almost three years without financial or other assistance from Straub whatsoever. The odds are slim to non-existent that society will be held responsible for the care and welfare of this child. The problem of "children for sale" is also not evident in this case. Todd loves and cares deeply for her daughter and has no plans of giving this child to anyone including the state or the child's biological father for that matter. As noted supra , this is clearly not a surrogate contract agreement. Societal morals have changed drastically over the past few decades. More and more couples are rejecting the traditional institution of marriage. It is difficult for society to insist upon a traditional husband-wife couple when over half of all marriages end in divorce. See Families in Flux: New Approaches to Meeting Workforce Challenges for Child, Elder, & Health Care in the 1990s , Sar A. Levitan & Elizabeth A. Conway, (BNA 1990 p. 8.) One parent households are increasingly common and thus these concerns are becoming increasingly outdated. As one author observed: "Yet the vision of 'the family' which the New Right wishes to resurrect - a family proudly independent of public provision, with fathers as breadwinners and figures of authority and mothers fulfilled by children and home (David 1985) - is sharply at odds with the majority experience of men, women, and children in, for example, Britain today. . . . But the truth is, that many parents, and particularly women, have sought and are seeking to combine their commitment to children with patterns of living less restrictive than those of the conventional family. The number of woman who choose, or find themselves able, to 'go it alone' in raising children is the most powerful expression of this." Reproductive Technologies , supra , at 23-24.
Straub is not suggesting that all such agreements should be upheld, but if the parties intelligently and knowingly waive fundamental rights, the courts should uphold this decision. It is also questionable whether it is in the best interests of Todd's child to foist an unwilling party into the relationship. Such a decision would violate one of the basic principles of equity jurisprudence not to mention the possible detrimental effects on the minor child to be confronted with an unwilling father. Although a child may desire to know the identity of her father, this interest should not override Todd's fundamental right of procreation. One recent work summarized the argument as follows: "Another proposed 'interest of the child' is 'to know where it comes from'. This interest is immediately translated into the 'right' of the child to know its male ancestor, which is to be enforced as a legal right. . . . The striking point is that this phenomenon is not so much cited as a problem of which the dimensions should be known or for which solutions have to be found in concrete cases, but as an argument for a prohibition of 'unnatural' forms of reproduction. More particularly, the 'right' of a child to know where it comes from is used to challenge forms of family life that are not based on the blood tie between a woman, a man, and a child (see for example Daubler-Gmelin, 1986) On this issue there is an amazingly quick and unchallenged translation from 'longing' to 'interest' to 'right' in the moral sense, to 'right' in the legal sense. We think it is an urgent matter to question this chain or reasoning without denying the authenticity of these feelings about 'roots'." Reproductive Technologies, Surrogacy & Feminist Notions of Motherhood , Juliette Zipper and Selma Sevenhuijsen, 1987, p. 132-33.
Edward Straub is unable to meet Todd's request for emotional support, but this is exactly the sort of noninterference for which the parties bargained for and relied upon when they originally entered into their agreement. Contractual arrangements are a proper method for dealing with the questions raised by new reproductive technologies. In a recent work, one author observed: It is likely that in time the new technology will bring the opportunity to many more people to become a biological parent. . . . Singles and couples will be able to choose whether to parent, whether to donate the genetic material for the child, and whether to undergo pregnancy, and those options will exists independently of one another. . . . contracts - mutually binding contracts - are an appropriate medium for decisionmaking concerning childbearing and childrearing. Surrogate Motherhood, The Legal and Human Issues, "Do New Reproductive Techniques Threaten the Family" , (Harvard University Press 1990), by Marsha A. Field at 45.
This state has recognized that liberty to contract for a lawful purpose is a natural, inherent, and inalienable right. Indiana State Constitution Art. I, §24. Although this right can be regulated under the police power, Dept. of Financial Institutions v. Holt , 108 N.E.2d 629, 231 Ind. 279 (1952), the legislature has not promulgated any specific regulations which prohibit the contract in question. It should also be noted that our society has allowed many grave injustices in the guise of furthering "public policy." For instance, during the nineteenth century, equal treatment of minorities and women was against public policy. In the early twentieth century, the use of contraceptives was against public policy. It is clear that our societal values have changed and will continue to change in the future since the human condition mandates change on a biological, legal and concomitantly social level. Absent a compelling public policy or state regulation, this court should hold the parties to their bargain.
B. THE PARTIES' AGREEMENT SHOULD BE UPHELD BASED UPON CONSTITUTIONAL PRINCIPLES.
The parties' agreement embodies two constitutional concerns - equal protection of the laws and the fundamental right to privacy. The trial court ignored the constitutional implications of the parties' agreement, relying solely upon contract principles in reaching its decision. Under both the federal and state constitutions, the parties are guaranteed the right to privacy and the equal protection of the laws.
1. If the Court Fails to Uphold the Parties' Agreement, the Court would be Supporting a Clear Violation of the Equal Protection Provisions of Both Federal and State Constitutions. The Fourteenth Amendment to the United States provides, in part, "nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Article One, §23 of the Indiana Constitution states that "The General Assembly shall not grant to any citizen, or classes of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens." In Craig v. Boren , 429 U.S. 190 (1976) the United States Supreme Court recognized that discrimination on the basis of sex could not be supported unless the state demonstrated a significant public interest in maintaining the discrimination. In later cases, the court defined the state's burden to one demonstrating that the statute bears "a fair and substantial relationship to an important government interest." Craig , 429 U.S. at 198 (Powell, J., concurring); Portman v. Steveco , 453 N.E.2d 284 (Ind. App. 1983); Reilly v. Robertson , 360 N.E.2d 171, 266 Ind. 29, cert. denied 434 U.S. 825 (1977); 4 I.L.E. Constitutional Law §328. The federal standard applies whether the statute discriminates against males or females. Miss. Univ. for Women v. Hogan , 458 U.S. 718 (1982) It is likely that if the parties' legal positions were reversed that Edward Straub would now be unable to intervene in the relationship between Todd and the minor child. Certainly, the statutes and case law concerning adoption proceedings support this conclusion. Of special significance, if Todd desired to place the minor child up for adoption, Straub would have no right to consent or object to the adoption. I.C. 31-3-1-6(g)(2)(A) (1991) If an individual, which has been adjudicated to be a child's parent, has not communicated with the child for several years, a court may hold that this conduct manifests an intent to forego all parental duties and relinquish all parental claims. In re Adoption of Force , 131 N.E.2d 157 (1956) Under such circumstances, the natural mother could place the child up for adoption without seeking any permission whatsoever from the putative father. This glaring disparity between the rights of the mother and putative father is unjustified and unconstitutional. If the mother can defeat, by statute, the child's rights to support from her natural father through adoption, it appears inconsistent to forbid a man from agreeing in advance to forego all parental duties and rights. The state has no important interest to justify this discrimination between the rights of men and women. Although the state may argue that the adoption procedure serves the best interests of the child, this argument provides no support for a categorical denial of the rights of the putative father. The putative father may actually provide a comparable, if not superior, environment for the child's development. The true basis for the distinction must be that the woman can determine the best interests of her child in certain instances. If this is the reason, then it is clear that a man should be able to enforce an agreement with the woman which both parties agree is in the best interests of the child. If this court fails to enforce this agreement between the parties it will also be unfairly discriminating against Straub based upon his status as a known versus unknown sperm donor. A recent survey estimated that 172,000 women underwent artificial insemination in 1986-1987, resulting in at least 30,000 births from artificial insemination by donor. A man who donates his sperm to a sperm bank generally receives monetary compensation, usually $50 to $100, and also an assurance that his name shall remain confidential. See Surrogate Motherhood, The Legal and Human Issues, "Constitutional Arguments - For and Against" , (Harvard University Press 1990), by Marsha A. Field at 48. Such measures ensure that the donor will not be held responsible for later support of any resulting children. Under the Uniform Parentage Act, which has been adopted in some form by a majority of states, the donor of semen used in artificial insemination has no legally recognized relationship with the resulting child. Uniform Parentage Act §5. The clear purpose of these statutes is to avoid disputes over parental responsibilities and to encourage men to donate sperm by shielding them from claims by the mother or the child. McIntyre v. Crouch , 98 Or.App. 462, 780 P.2d 239 (1989) At least one court has applied such a statute to a case involving a known donor. Id. To sever parental responsibilities for known sperm bank donors, but not for individuals such as Straub is to draw a distinction without a difference, e.g., any distinction would be irrational. The result is clearly the same, merely the method of transportation varies. This is especially true when the recipient, as in this case, is unable to utilize traditional artificial insemination. State action which protects the rights of one type of sperm donor, yet does not protect another, discriminates against the one group for its choice of reproductive techniques, a choice which should fall within the court's recognition of a fundamental right of privacy. 2 If the Court Fails to Uphold the Parties' Agreement, the Parties will be Deprived of Their Fundamental Right to Privacy. It is a well settled principle of constitutional law that an individual's decision to bear or not bear a child is protected by a penumbra of constitutional provisions. Griswold v. Connecticut , 381 U.S. 479, 484 (1965) (invalidating a Connecticut statute forbidding the use of contraceptives) The Court in Griswold , identified various "zones of privacy" which the Constitution protects from governmental interference. Id. The Court noted that a married couple's right to choose whether or not to have children is within a protected zone of privacy. Id. In Einsenstadt v. Baird , 405 U.S. 438 (1972), the Court expanded this right to protect unmarried individuals as well. The Court observed: "If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Id. at 453; see also , 4 I.L.E. Constitutional Law §155 ("a fundamental right to family integrity is constitutionally recognized . . . The constitutional right to privacy protects relationships and decisions relating to marriage, procreation, mother hood, child rearing, and education from public intrusion, and interference where there is a legitimate expectation of privacy. (citations omitted)) Later the Supreme Court, in Roe v. Wade , 410 U.S. 113 (1973), held that the right to privacy allowed a woman to barter away that those precious right of another - life itself. If a woman may terminate the life of an unborn child without any input from the father of the child, see Planned Parenthood of Missouri v. Danforth , 428 U.S. 52 (1976), it seems abundantly clear that a woman may also contract to eliminate a father's responsibility for the child. Cf. Harris v. McRae , 448 U.S. 297 (1980) (the Fourteenth Amendment includes "not only the freedoms explicitly mentioned in the Bill of Rights, but also a freedom of personal choice in certain matters of marriage and family choice") One judge concluded, "It is inconsistent and illogical, it appears to me, to hold that the mother of an unborn fetus may, with impunity and contrary to the desires of its father, kill the fetus and thereby eliminate its need for support while at the same time holding that she may not, at the identical stage of pregnancy relieve the same father from the obligation to support. I cannot fathom how support is more important than life itself. Shinall v. Pergeorelis , 325 So.2d 431 (Fla. App. 1976) (Boyer, J. dissenting)
By failing to enforce the parties' agreement, a court would be denying the right of the individual to decide if, when, and under what circumstances they could donate semen, be inseminated or even make the fundamental decision to procreate.
C. AS FRANCINE TODD HAS RECEIVED ALL OF THE BENEFITS OF THE PARTIES' AGREEMENT, THE CONTRACT SHOULD BE UPHELD BASED UPON EQUITABLE PRINCIPLES.
Even though this case involves personal rights, this court can grant appropriate equitable relief. State ex rel Mavity v. Hickey , 224 Ind. 364 (1946) Todd should not be allowed to escape the clear agreement between the parties based upon three equitable doctrines" (A) Equitable estoppel; (B) Laches; and (C) Unclean hands. The first doctrine, laches, is based upon the equitable maxim, "Equity aids the vigilant, not those who slumber on their rights." Laches is founded not upon the appropriate statute of limitation, but upon the inequity of permitting a claim to be enforced. The key consideration is inaction by the offending party. A party must show that unreasonable delay has resulted in harm to the party. Galiher v. Cadwell , 145 U.S. 368 (1892); Pickett v. Pickett , 470 N.E.2d 751 (Ind. App. 1984) Although the child has a considerable period in which to bring a paternity action, a minor child acts only through its parent or parents. A putative father, in general, has no reason to believe that he may not be the subject of a later paternity action. In this case, however, Edward Straub relied to his detriment upon the agreement between Todd and himself. But for the agreement, this child would not have the gift of life itself, let alone the ethereal concept of legally enforceable "rights". It is uncontroverted that Todd has waited over four years to bring this action. From a legal procedure viewpoint, Todd's clear intent is to achieve through her child what she is barred from seeking herself. The court's determination on the issue of laches is within its sound discretion and will only be reversed for clear abuse of discretion. Alber v. Standard Heating and Air Conditioning, Inc. , 476 N.E.2d 507, 509 (Ind. App. 1985) The second doctrine, equitable estoppel, is similar to laches, but involves affirmative conduct which misleads another, not inaction. To establish equitable estoppel a party must demonstrate: (1) a false representation or concealment of material fact is made with actual or constructive knowledge of the truth.
(2) the representation is made to one who is without knowledge or scienter, with the intent that he or she will rely upon it.
(3) the second party relies upon the falsehood to his or her detriment. Id. at 510. Todd's course of conduct meets these requirements. In the parties' written agreement, Todd represented that she would hold Straub harmless for future support. Todd clearly intended that Straub should rely upon this representation. By foregoing the use of contraceptives, Straub relied upon the representation. This Court should estop Todd from seeking support from Straub because of her prior misleading conduct. Straub had no way of knowing that Todd would not uphold her end of the bargain, thus the facts were not equally known to both parties. See City of Crown Point v. Lake County , 510 N.E.2d 684, 687 (Ind. 1987) Although prior decisions have held that an estoppel defense will not preclude a claim for past child support, City of Crown Point , supra , those decisions do not involve conscious decisionmaking prior to conception which determine whether a child would even be conceived. Those prior decisions involve denial of a legal obligation after the obligation has become fixed. E.g. , Pickett v. Pickett , 470 N.E.2d 751 (Ind.App. 1984) This case involves an agreement which the parties executed prior to the imposition of any legal obligation. The final equitable doctrine is unclean hands - the equitable maxim of "He who comes into Equity Must Come with Clean Hands." Todd's essential claim is that Edward Straub is avoidinghis responsibilities towards the child. Yet the same charge may be levelled against Todd in that her responsibilities under the agreement were to preserve Straub's confidentiality and to hold Straub harmless against future obligations. Although the unclean hands must be derivative from the transaction before the court, Keller v. Indiana Department of Revenue , 530 N.E.2d 787 (Ind. Tax Ct. 1988), the transaction which affects the liability of both parties - the conception of the child - is the same. As there is no indication that the parties' contract to impregnate Todd was unconscionable, this court should in equity deny the plaintiff the requested relief due to her unclean hands. The cases which have held that a party may not contract away child support obligations are distinguishable from the case at bar. In Matter of the Paternity of M.D.H., R.L.W., and C.D.M. , Ind. App., 437 N.E.2d 119, 128 (1982), the Court was concerned primarily with securing support and education for illegitimate children and preventing illegitimate children from becoming wards of the state. Of special significance, the M.D.H., R.L.W., and C.D.M. decision, as well as the other cases cited by the Petitioner, involve nullification of a contract between biological parents after the conception and birth of the children involved. This case is fundamentally different in that the contract was entered into prior to conception, let alone the birth, of the minor child herein. Since the child was neither conceived nor born at the time the parties consummated the contract, it cannot be argued that the minor child's rights were contracted away. Minor children simply do not have any rights prior to conception. All of the cases cited by the Petitioner involve post-conception agreements, none of these cases involve pre-conception agreements. In Holderness v. Holderness , Ind. App., 471 N.E.2d 1157 (1984), both parents agreed to the termination of the father's rights and responsibilities in anticipation that the mother's second husband would adopt their three children. Id . at 1158-59. The agreement explicitly provided that the stepfather would adopt the children. The trial court judge initially accepted this agreement. Id . However, the mother's second husband failed to file for adoption, and instead filed for divorce. Id. at 1159. Apparently, the agreement failed to provide for such a contingency. Id . at 1159. The court of appeals nullified the agreement because the stepfather did not adopt the three children as agreed, and their agreement did not comply with other state statutes for the voluntary termination of parental rights. Id . at 1159-60. Based upon the failure of the wife's second husband to adopt the children pursuant to the original agreement, the court reinstated the father's child support obligations. Unlike the present case, the parents in Holderness clearly believed the children would be adopted and had the adoption proceeded as planned the court would not be concerned with the termination agreement. Certainly weighing on the court's mind was the fact that the mother had to rely on public assistance for the support of her children during the course of the litigation. Clearly, such financial circumstances do not exist in the case at bar. Of more significance, the Holderness decision involved an agreement to terminate the father's rights and responsibilities after the children were born. The present case involves a preconception agreement. Absent such an agreement, Francine Todd would have been denied her fundamental right to procreate in that she did not desire another abusive husband and had been denied access to a sperm bank. To the extent that Francine Todd's fundamental constitutional right to procreate was protected by the agreement with Edward Straub, the absence of which she would have been denied procreational autonomy, a legitimate argument can be made that the agreement is actually in furtherance of public policy. In Siegler v. Wiser , (1987), Ind. App., 517 So.2d 124, the putative father and the natural mother attempted to enter into a settlement agreement after the mother filed the paternity action. The facts demonstrate that the parties did not have any formal understanding of parental responsibilities prior to conception. Both the Siegler and Holderness decisions stand merely for the proposition that parents may not enter into agreements regarding child support after a child is conceived. These decisions simply do not apply to a preconception agreement as we have in this litigation. The Siegler Court relied upon Gammon v. Cobb , (Fla. 1976), 335 So.2d 261, but the issue before the Court in Gammon was whether statutory distinctions between illegitimate children were constitutional. Although the Gammon court states that a release by a mother which affects the rights of a child is ineffective, the court fails to make any distinction between preconception intent and postconception intent. This distinction is the cornerstone of the growing body of caselaw which has been spawned by a literal revolution in reproductive technology including, but not limited to, artificial in vitro insemination, genetic engineering, and surrogate parenthood. Although a parent may not contract away the rights of a viable child, the parent may make conscious decisions regarding the desire to have children in the first place. As the Tennessee Supreme Court held in Davis v. Davis , (1992), 842 S.W.2d. 588, cert. denied , 61 U.S.L.W. 3581 (1993). . . . we hold that disputes involving the disposition of preembryos produced by in vitro fertilization should be resolved, first, by looking to the preferences of the progenitors. If their wishes cannot be ascertained, or if there is dispute, then their prior agreement concerning disposition should be carried out.
The landmark decision in the Davis case underscores the emphasis the higher courts of our country have placed upon the preconception intent of the parties. In the Davis decision, the Supreme Court of Tennessee, unanimously ruled that a woman could not force her husband to become a father by thawing frozen embryos against his wishes. Justice Martha Craig Daugherty wrote for the majority, "we conclude that the answer to this dilemma turns on the parties' exercise of their constitutional right to privacy." The gist of this important, but currently unpublished, opinion is that in each case, the interests of both parties should be weighed. In short, the Tennessee Supreme Court held that being a parent to a child is such a significant responsibility that it should not be forced upon anyone. In the present case, the parties, prior to conception , had a clear understanding of each parent's responsibilities both before and after conception. But for the parties' agreement, no child would have been born. The donation of sperm, whether supervised by a physician or not, has the same biological effect. To suggest that the presence or absence of a physician determines subsequent parental rights is to raise form over substance and to allow the physician to, in essence, veto the stated preferences of the participants to the sperm donor arrangement. The primary criterion for assessing the parental obligations between the parties should be the parties' expressed preconception intent. As one commentator noted, "they [the courts] should take the approach of allowing the parties' preconception intent to govern paternity, possibly requiring that some documentation of intent be filed with the state." Andrews, Legal Aspects of New Reproductive Technologies , 29 Clinical Obstetrics & Gynecology 190, 200 (1986) The parties' intent was to exclude Edward Straub from the benefits as well as the burdens of parenthood. Therefore, this courtshould give full force and effect to the parties' agreement of December 15th, 1986, since the written agreement and the testimony of the parties clearly reflect the parties' preconception intent that Edward Straub would supply sperm and protect his identity as the donor and that Francine Todd would not hold him financially responsible in the future.
2. ASSUMING ARGUENDO, THAT THE PARTIES' AGREEMENT WAS IN VIOLATION OF PUBLIC POLICY AS IT RELATED TO BRILEY MICHELLE TODD, THE AGREEMENT WAS ENFORCEABLE BETWEEN FRANCINE TODD AND EDWARD STRAUB BASED UPON BOTH EQUITABLE AND CONTRACTUAL PRINCIPLES. The trial court addressed only the rights of Briley Michell Todd vis-a-vis Francine Todd and Edward Straub. Although the issue was squarely before the trial court, the court failed to address Edward Straub's rights and remedies against Francine Todd. The agreement between Francine Todd and Edward Straub does not change the minor child's right to financial support. It merely changes the relationship between Edward Straub and Francine Todd. As the Florida Supreme Court stated in Gammon v. Cobb , 335 So.2d 261, 267, the mother is merely a "trustee" to receive support funds. A trustee acts in an individual as well as a fiduciary capacity. Although the actions of the trustee in her individual capacity may not affect the beneficiary of the trust, a debtor can recover from the trustee's individual assets if the debtor has been wronged. Under trust law, nothing would preclude the debtor's action. This is precisely the situation before the Court. Edward Straub seeks to hold Francine Todd responsible in her individual capacity to indemnify him for his support obligation to the minor child.
A. THE EQUITIES FAVOR INDEMNIFICATION OF THE RESPONDENT.
If this Court grants financial relief to the minor child based upon her right to support, this Court should allow Straub to seek indemnification from Todd. The purpose of child support is to provide necessities for the child's needs, not the needs of the custodial spouse. As the existence of the agreement between the parties and its perceived effect is uncontested, this court should balance the equities between the parties, and allow Straub to seek indemnification from Todd. It would be inequitable for Todd to receive the benefits of the contract - noninterference, confidentiality, and the birth of her child, without allowing Straub to recoup the substantial costs which he will incur as a result of Todd's breach of the parties' contract to impregnate Todd. Todd has yet to establish that she is unable to provide for the needs of the child and has provided for the child for several years. From the record, it is clear that Todd desired to live a lie. In her deposition, Todd states that she told her fellow employees that she had been artificially inseminated. (R. at 425) As of May 1991, her coworkers still did not know the truth regarding the minor child's conception. (R. at 75, Todd depo. at 3) Although she wants the benefits of this lie, retaining her job and her child, she also desires to avoid the costs of this lie - relieving Straub from emotional and financial duties. As stated supra , the equities favor Straub. B. INDEMNIFICATION IS WARRANTED BY THE EXPRESS LANGUAGE OF THE AGREEMENT.
An indemnification agreement is treated like any other contract; courts try to ascertain the intention of the parties as revealed by the language of the contract. Indemnity Ins. Co. of North America v. Koontz-Wagner Elec. Co. , 233 F.2d 380 (7th Cir. 1956) Although the contractual language must manifest an intention to indemnify, Wilson Leasing Co. v. Gadberry , 437 N.E.2d 500 (Ind. App. 1982), it is not necessary for the person indemnified to sign the agreement. Kruse Classic Auction Co., Inc. v. Aetna Cas. & Sur. Co. , 511 N.E.2d 326 (Ind. App. 1987), reh. den., transfer den. Under Indiana law, an indemnitee who incurs legal expenses, through defending an action against him for which he is entitled to indemnification, is entitled to recover those fees from the indemnitor. Zebrowski and Assoc., Inc. v. City of Indianapolis , 457 N.E.2d 259 (Ind. App. 1983) The clear language of the agreement states that the men involved "will not be held responsible financially." As Todd stated in her deposition, the plan was for Straub to continue the underlying relationship without the benefit of contraception and, in return, Todd assured Straub, in writing, that he would not he held financially responsible for the child. Indemnification is especially warranted in this case because Todd initiated the action which will result in economic injury to Straub. The language of the agreement does not state that Edward Straub will not be liable for child support, it says that he will not be held financially responsible. Although Todd might argue that public policy prevents enforcement of this contract as against the child, public policy certainly does not preclude the enforcement of this contract against Francine Todd. Such an interpretation of this agreement would preserve the intent of the parties, but also ensure that Briley Todd's needs are met. C. FAILURE TO ALLOW INDEMNIFICATION WOULD AMOUNT TO RECOGNITION OF CONSTRUCTIVE FRAUD.
A recent Indiana Court of Appeals decision discussed the requirements of constructive fraud. In Nestor v. Kapetanovic , the court identified six elements for a prima facie case of constructive fraud: 1. a duty owing by the party to be charged to the complaining party due to their relationship,
2. violation of that duty by the making of deceptive material misrepresentations of past or existing facts or remaining silent when a duty to speak exists,
3. reliance thereon by the complaining party.
4. injury to the complaining party as a proximate result thereof, and
5. the gaining of an advantage by the party to be charged at the expense of the complaining party. 573 N.E.2d 457 (1991) Edward Straub and Todd were involved an intimate and confidential relationship. Confidentiality was, in fact, a keystone of the arrangement between the parties. In Swain v. Swain , 576 N.E.2d 1281 (Ind. App. 1991), the court recognized that a confidential relationship could exist between two unmarried individuals contemplating marriage. Based upon Swain , this Court might also find a confidential relationship existed between two parties contemplating the conception of a child. Todd knew that Straub would not donate his sperm to Todd absent an agreement that his identity would be confidential and he would not be financially responsible to the minor child. Straub relied upon this agreement and now faces a significant economic burden, while Todd has reaped all of the benefits of the agreement to Straub's clear detriment.
VI. CONCLUSION For all these reasons, Appellant respectfully asks this Court to reverse the trial court ruling and grant Appellant his costs and attorneys' fees as provided in I.C. 34-1-32-1 and Indiana Appellate Rule 15(G).
Respectfully Submitted,
MATTOX & MATTOX 420 Elsby Building P.O. Box 1203 New Albany, IN 47151-1203 (812) 944-8005
BY: __________________________________ S. Frank Mattox Ind. Sup. Ct. #10093-22 Attorney for Appellee IN THE COURT OF APPEALS STATE OF INDIANA
No. 10A04-9302-JV-53
EDWARD STRAUB, ) ) Appeal from the Appellant, ) Clark Circuit Court (Respondent Below) ) ) vs. ) ) FRANCINE TODD, ) The Honorable ) Daniel Donahue, ) Judge ) Appellee, ) Cause No. 10C01-9101-JP-001 (Petitioner Below) )
AFFIDAVIT OF FILING OF SERVICE
S. Frank Mattox, attorney for the Appellant, having affirmed, states as follows: 1. That his method of filing one (1) original Brief, eight (8) copies thereof, with the Clerk of the Court of Appeals, State of Indiana, was by United States Mail, certified, return receipt requested. Said original and copies were placed for shipment to the Clerk of the Court of Appeals on October 29, 1991. 2. That a copy of the Appellant's Brief was served upon the Attorney for the Appellee, Earl C. Mullins, Jr., 1012 S. Fourth Street, Louisville, Kentucky 40103, on March , 1993. 3. Further, affiant sayeth not. I AFFIRM, under the pains and penalties for perjury, that the foregoing representations are true to the best of my knowledge and belief. MATTOX & MATTOX 420 Elsby Building P.O. Box 1203 New Albany, IN 47151-1203 (812) 944-8005
BY: __________________________________ S. Frank Mattox Ind. Sup. Ct. #10093-22 Attorney for Appellant
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