LL) wquNW-GATES LLP 10100 Santa Monica Boulevard Seventh Floor Los Angeles, CA 90067 Telephone: +1 310 552 5000 Facsimile: +1 310 552 5001 Christina N. Goodrich (SBN 261722) Attorneys for Petitioner and Plaintiff, JOHN DOE JOHN DOE, an individual Petitioner and Plaintiff, VS. JANE DOE, an individual; and ART REPRODUCTIVE CENTER, INC, a California Corporation Respondents and Defendants. Abram 1. Moore (pro hat: vice application forthcoming) Sara E. Fletcher (pro hac vice application forthcoming) SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, SANTA MONICA COURTHOUSE FILED Su rtor Court of California ggunty oi Los Annalee APR 01 2015 Sherri R. Carter xecutwe O?icertClerk By illegalityr Melanie Kurihara Case No. SS 024581 FIRST AMENDED COMPLAINT Date Action Filed: August 29, 2014 1 1 Plaintiff JOHN DOE (?roam or ?Plaintiffs. by his attorneys. Gates as and for in} his First Amended Complaint against Defendants JANE DOE or ?Defendant?) and ART 3 REPRODUCTIVE CENTER, INC- (JOHN and JANE are referred to collectively as the 4 ?'Parties") alleges as follows: 5 INTRODUCTION 6 1. In this action, JOHN seeks to save from destruction two cryopreserved human female 7 embryos created using Sperm and ova (the ?Female The Parties were 3 engaged to be married and created the Female Embryos using In Vitro Fertilization for the 9 purposes of attempting to have children. However, before the Female Embryos could be implanted in 10 a surrogate, the Parties ended their relationship. Now, JOHN seeks to ensure that the Female 11 Embryos are not destroyed, but JANE refuses to agree to their preservation under all circumstances. 12 THE PARTIES 13 2. Defendant, JANE DOE, is an individual who resides in Los Angeles County, 14 California. 15 3. Defendant ART REPRODUCTIVE CENTER, TNC. is a California corporationdoing 16 business in Beverly Hills, California, which provides fertility and reproductive services. 17 4. Plaintiff, JOHN DOE, is an individual who resides in Delray, Florida. 13 JURISDICTION AND VENUE 19 5. Venue is appropriate under the Code of Civil Procedure Section 393 because 20 Defendants are located in and the acts or omissions giving rise to liability in this case occurred in the 21 city of Beverly Hills, County of Los Angeles, California. 22 PROCEEDING WITH PSEUDONYMS 23 6. In the interest of justice, JOHN respectfully requests that the Parties be permitted to 24 proceed in this matter anonymously. 25 7. Proceeding with pseudonyms is appropriate where anonymity is necessary to preserve 26 privacy in a matter that is of a sensitive and highly personal nature, See D035 {hru My? 1, 27 Texf?e Corp-i 214 F.3d 1053. 1067 (9th Cir. also Doe v. Lincoln Un?ied School 28 2 FIRST AMENDED COMPLAINT Renown PAPER l) 1 are. 133 Cal. App. 4th 753. 765-66 (2010) (?there have been countless published state I?d decisions where one or more of the parties have used fictitious names. 3 3. This lawsuit involves matters that are highly sensitive and personal, including JOHN 4 and medical and reproductive history and the Parties? respective desires regarding the 5 destruction or preservation of the Female Embryos, which could become children. 6 9- The public interest in disclosure of JOHN 's and identities is minimal, 7 particularly since this involves personal and private reproductive and medical matters. 3 10. Upon information and belief, JANE also desires to proceed anonymously. 9 THE FACTS 10 11. JOHN and JANE began a romantic relationship in 2010. 11 12. in July of 2012, JOHN and JANE were engaged to be married and made plans to start 12 a family. After consulting with physicians and staff at ART, JOHN and JANE decided to undergo 13 IVF in order to create fertilized embryos using sperm and ova, and to then have 14 those fertilized embryos transferred to a gestational surrogate to carry the pregnancy to term. 15 13. JOHN and JANE considered various surrogacy options. JANE insisted that her 44? 16 year-old friend and employee serve as the Parties? surrogate (?the Surrogate?), over 17 objections as well as the recommendations of the Parties? doctor. The Parties retained joint counsel 18 to draft a Gestational Surrogate Parenting Agreement to be entered into with the Surrogate, which 19 continued that JOHN and JANE ?desire to have a Child biologically related to Intended Parents, and 20 to take into their home the Child as their own.? 21 14. Although the Parties? counsel expressly advised the Parties against compensating a 22 gestational surrogate (and against using an employee as a surrogate), upon information and belief, 23 without consent, and over repeated objections, JANE provided the Surrogate a 24 variety of expensive gifts in exchange for her services. Those gifts had a total value of approximately 25 $200,000 and included mortgage payments for the Surrogate?s home. 26 1 5. 2? In the spring cf2013, the Parties underwent their ?rst round of IVF. JOHN deposited Sperm, eggs were 311d JOHN and JANE directed ART to attempt to fertilize each 23 of the retrieved eggs. Two embryos, both female, ultimately survived to viability. 3 FIRST AMENDED COMPLAINT PAPER 16. JOHN and JANE agreed to immediately use those two female embryos to attempt to have children. 17. In early 2013, one of the Parties? female embryos was implanted in the Surrogate- Unfortunately, the implantation was unsuccessful and did not result in a viable pregnancy. 18. In April of 2013, the Parties? second female embryo was implanted in the Surrogate. Unfortunately, the second implantation was likewise unsuccessful and did not result in a viable PIE gnancy. 19. The Parties* desire to create children remained strong, and accordingly they decided it) undergo a second round of IVF. This time, JANE agreed to select a more appropriate gestational surrogate to attempt to carry the pregnancy to term. 20. The Parties immediately began working with a professional agency to find a new gestational surrogate candidate. According to the Surrogacy Program Retainer Agreement entered into by the Parties and the agency, JOHN and JANE ?intend[] to have a child or children,? and the agency agreed to locate and match women to act as potential surrogates on behalf of JOHN and JANE. 21. The agency presented JOHN and JANE with two Surrogacy candidates. On June 24, 2013, JANE wrote JOHN an email stating that she wished to meet with both candidates in person. Later that day, JOHN wrote the agency an email stating that he and JANE would like to meet with surro gaey candidates in August, the next time they were scheduled to be in Los Angeles_ 22. In November of 2013, JOHN and JANE were prepared to undergo the procedure for the second time. On November 16, 2013, JOHN and JANE met with staff at ART and signed a General Informed Consent for Procedures Involved in In Vitro Fertilization (the ?General Infomed Consent,? attached hereto as Ex. A, but redacted to maintain the Parties? anonymity). The General Informed Consent is made up of a number of documents, one of which is titled nDirective for Partners Regarding the Storage and Disposition of CryoPreserved Materials Which May Include Embryos? (the ?Form Directive?). (Ex. A, p. 15?20.) 23. Neither Party and no attorney for either Party drafted the Form Directive_ Instead, the Form Directive was a form docmnent ?rst presented to JOHN and JANE by ART on the same day 4 FIRST AMENDED COMPLAINT Rumour: PAPER that they signed the document. The Parties were given no opportunity to modify the Form Directive or include additional terms in the Form Directive. nor were they advised to consult with legal counsel prior to signing the Form Directive. 24. In the Form Directive, the Parties were given the opporttmity to select from just three ?mad Options indicating how the Female Embryos should be disposed of in the event of the death of either one or both of them. (1d. at p. 16.) JANE insisted that in such a circumstance, the Female Embryos be thawed with no further action. JOHN did not agree with JANE, and refused to initial his agreement regarding that term. JOHN did not want the Female Embryos to be destroyed under any circumstance. However, JANE insisted that JOHN agree to the destruction of the Female Embryos under that circumstance, and began vigorously berating him in the ART of?ces. Such abuse was unfortunately common in the Parties? relationship, as JANE was on many occasions physically, emotionally and mentally abusive to JOHN. For example, she physically abused him on four separate occasions: she punched him in the face on two occasions, kicked him, and threw her phone at his head. She also routinely bullied him, calling him a ?loser,? ?worthless,? and other degrading names. JOHN accordingly signed this portion of the Form Directive, even though he did not agree with it, in order to avoid ?trther abuse. Further, the Parties had agreed to immediately implant the Female Embryos in a surrogate in an attempt to have children. JOHN therefore assumed that the disposition of these embryos in event of the death of one of the Parties was a circumstance that would never arise. 25. The Form Directive failed to give the Parties the opportunity to specify how the Female Embryos should be disposed of in the event of their separation, nor did anyone at ART ever discuss this circumstance with them. The Form Directive likewise failed to give the Parties the option to donate the Female Embryos to another couple or individual in the event of either or both of their deaths. 26. Shortly after the execution of the General Informed Consent, JOHN deposited sperm and JANESS eggs we?? retrieved. JOHN 311d JANE directed ART to attempt to fertilize each of the eggs. Two embryosv-both female--survived to viability. It is those Female Embryos that are the subject of this dispute. 5 Extreme PAPER FIRST AMENDED COMPLAINT DJ taFIRST AMENDED COMPLAINT I 27. In May of 2014, before the Female Embryos could be implanted in a surrogate, the Parties ended their romantic relationship. 28. Subsequent to the end of the relationship, JOHN attempted to get JANE to agree that, if one of the Parties should die, the other Party should control the Female JANE remsed ?3 even respond to this request, apparently because she hoped for the Female EmbrY?S t0 Ultima'fely be destroyed. 29. JOHN does not desire for the Female Embryos to be destroyed. By this lawsuit, JOHN seeks an order prohibiting ART from destroying the Female Embryos under an},r circumstance- COUNT I: Declaratory Judgment against JANE and ART (Prohibiting Destruction of Embryos 30. JOHN incorporates the allegations set forth in Paragraphs 1-29 as if fully set forth herein. 31. At present, there exists an actual and justiciable controversy between the Parties. JANE wants the Female Embryos to be destroyed under certain circumstances. JOHN does not want the Female Embryos to be destroyed under any circumstances. Moreover, JOHN contends that the Form Directive attached as Exhibit A hereto is not a binding contract between himself and JANE regarding their respective rights in the Female Embryos or the disposition of the Female Embryos. Upon information and belief, JANE disagrees. 32. The Female Embryos are the joint property of JOHN and JANE. Accordingly, JOHN has an interest in the Female Embryos and their continued cryopreservation. 33. JOHN respectfully requests that this Court enter an order prohibiting ART ?om destroying the Female Embryos, and for such other relief as the Court ?nds just and equitable, COUNT II: Declaratory Judgment against JANE and ART (Form Directive is Void and Unenforceable as Contract Between JOHN and JANE) 34. JOHN incorporates the allegations set forth in Paragraphs 1-33 as if fully set forth herein. 35. Section 125315 of the California Health Safety Code (the ?Coda? States that? ?iwlhen PmVidi?g fertility treatment, a physician and surgeon or other health care provider shall RH:ch Puma provide a form to the male and female partner. . .that sets forth advanced written directives regarding the disposition of embryos.? 36. The Code expressly requires that the following choices be made available to the Parties for of embryos in the event of their separation: Made available to the female Partner; (13) Made available to the male partner; Donation for research purposes; Thawed ?nth ?0 further acti?n taken: (8) Donation to another couple or individual; or Other disposition that 15 clearly stated. The Code further provides that the failure to provide to a patient this information constitutes unprofessional conduct. 37- In violation of Section 125315 of the Code, the Form Directive provided to the Parties by ART did not provide JOHN and JANE with options for disposition of the Female Embryos in the event of their separation, the present circumstance in which the Parties find themselves. 33. The Code expressly requires that the following choices be made available to the parties for disposition of embryos in the event of the death of either the male or female partner: made available to the living partner; donation for research purposes; thawed with no further action taken; donation to another couple or individual; or other disposition that is clearly stated- 39. In violation of Section 125315 of the Code, the Form Directive provided to the Parties by ART did not provide the Parties with the option to donate the Female Embryos to another couple or individual in the event of the death of either JOHN or AN E. 40. The Code expressly requires that the following choices be made available to the parties for disposition of embryos in the event of the death of both partners: donation for research purposes; thawed with no further action taken; donation to another couple or individual; or other disposition that is clearly stated. 41. In violation of Section 125315 of the Code, the Form Directive provided to the Parties by ART did not provide the Parties with the option to donate the Female Embryos to another couple or individual in the event of the death of JOHN and JANE. 42. JOHN respectfullyr requests an order declaring the Form Directive void and unenforceable as an agreement between JOHN and JANE regarding the disposition of The Female Rzoromn Pugg 71' FIRST AMENDED COMPLAINT f) I.) ?EmbfY?s in the event of their separation or in the event of the death of either or both Parties, because the Form Directive violates the mandatory provisions of Section 125315 of the California Health Lu Safety Code. and for such other relief as the Court ?nds just and equitable- 4 Count Declaratory Judgment Against Jane and Art 5 (Form Directive Does Not Control Disposition of Female Embryos Upon Separation) 6 43- JOHN incorporates the allegations set forth in Paragraphs 1-42 as if full}? 531 forth 7 herein. 8 44- JOHN contends that the Form Directive attached as Exhibit A hereto is not a binding 9 contract between himself and JANE. Upon information and belief, JANE disagrees. 10 45. If the Form Directive is found to be a binding contract between JOHN and JANE, 11 JOHN seeks a declaration that the Form Directive does not control the disposition of the Female 12 Embryos upon separation of the Parties, the current circumstance in which the Parties ?nd 13 themselves. 14 46. When the Parties signed the Form Directive, they were involved in a romantic 15 relationship. They were never advised that the Form Directive would control the disposition of the 16 Female Embryos if and when their relationship ended. 17 The Form Directive fails to set forth the Parties? intent regarding the disposition of the 18 Female Embryos if the Parties were to separate. 19 43. The Parties have now separated, and therefore a circumstance has arisen that is not 20 contemplated under the Form Directive. 21 49. JOHN reapectfully requests an order declaring that the Form Directive does not 22 control the disposition of the Female Embryos in the event of the separation of the Parties. the 23 circumstance in which the Parties currently ?nd themselves, and for such other relief as the Court 24 ?nds just and equitable. 25 Count IV: Rescission of the Form Directive against JANE 26 50. JOHN incorporates the allegations set forth in Paragraphs 149 as if fully set forth 27 herein. 23 8 1 FIRST AMENDED COMPLAINT can?, ,m JOHN contends that the Form Directive attached as Exhibit A hereto is not a binding 31. Contract himSEIf and JANE. Upon information and belief, JANE disagrees. 52. If found to be a binding contract between JOHN and JANE, the Form Directive, which directed the Parties to specify disposition of the Female Embryos in the event of one or both of their deaths, should be rescinded. (Ex. A p. 16.) 53. Although JOHN signed a document providing that the Female Embryos be thawed in the event of the death of either him or JANE, he signed this portion of the Form Dn?ective under duress. JANE was physically, emotionally and mentally abusive to JOHN, and JOHN felt pressured to sign this portion of the Form Directive in order to appease JANE and avoid further abuse. 54. JOHN respectfully requests that this Court enter an order rescinding the Form Directive as between him and JANE, and for such other relief as the Court ?nds just and equitable. PRAYER FOR RELIEF JOHN prays that the Court grant the following relief: 1- Enter an order declaring that ART shall not destroy the Female Embryos under any circumstances; Enter an order declaring the Form Directive void and unenforceable as an agreement between JOHN and JANE regarding the disposition of the Female Embryos in the event of their separation or the death of either or both party in violation of Section 125315 of the California Health Safety Code; If the Form Directive is considered a binding agreement enter an order declaring th 1; ?t a 1 does not control the disposition of the Female Embryos upon separation of the Parties under the current circumstance in which the Parties ?nd themselves- If the Form Directive is considered a binding agreement - enter an order rescinding the Form Directive as an agreement between JOHN and and If 1? fl! El Such Other relief as the Court deems just and proper. Dated: April 2015 GATES LLP Ch?s?fi?ria N. Goodrich By: Abram 1. Moore (pro hac vice application forthcoming) Sara E. Fletcher (pro hac vice app Attorneys for JOHN DOB 10 FIRST AMENDED COMPLAINT Iieation forthcoming) RECYCLED PAPER