In re Marriage of Buzzanca

California has formulated a rule of law that will help avoid the situation of a "parentless" child becoming the state's responsibility. The ruling also extended comprehensive legal protection to couples considering the use of donated gametes. Because of the ruling, it is no longer necessary for an intended mother to pursue a stepparent adoption.

John and Luanne Buzzanca tried unsuccessfully for many years to have a child. In 1994 they had a fertility clinic combine an egg and sperm from anonymous donors. This embryo was implanted in Pamela Snell, a surrogate, whom the Buzzancas engaged to carry the baby to term. On 30 March 1995, one month before the baby was due, John Buzzanca filed for divorce and alleged that there were no children from the marriage. Luanne filed a response on 20 April 1995 stating that the couple was expecting a child by way of surrogate contract. Luanne cared for the baby, Jaycee Louise, since infancy and had actual physical custody since birth. In February of 1997, the court accepted a stipulation that Pamela Snell, the surrogate, and her husband, were not the "biological parents" of Jaycee.

Judge Monarch of the Superior Court of Orange County, at a hearing in March of 1997, ruled that Luanne was not the lawful mother of the child and therefore John could not be the lawful father or owe any child support money. Monarch stated, "One, there's no genetic tie between Luanne and the child. Two, she is not the gestational mother. Three, she has not adopted the child. That . . . is clear and convincing evidence that she's not the legal mother."

Luanne filed an appeal and the court granted a stay, which kept the support order for Jaycee. John argued that the written surrogacy agreement was signed two weeks after the implantation took place. The court found that an oral agreement had been made prior to implantation. John then testified that Luanne had told him she would assume all responsibility for the care of the child. John contended that the surrogate was the legal mother and her husband the legal father. John's lawyer commented at the oral arguments that "if the surrogate and her husband cannot support Jaycee, the burden should fall on the taxpayers."

Justice Sills wrote the opinion for the three judge panel of the California Court of Appeal for the Fourth Appellate District, Division Three. Sills felt that the trial court had reached "an extraordinary conclusion: Jaycee had no lawful parents." He disagreed. "Jaycee never would have been born had not Luanne and John both agreed to have a fertilized egg implanted in a surrogate." The trial judge erred because he assumed that legal motherhood could only be established either by giving birth or by contributing an egg. He failed to note that fatherhood can be established by a man consenting to allow his wife to be artificially inseminated. In such a case, the husband is the "lawful father" because he consented to the procreation of the child. The same rule can be applied in this case. A husband and a wife should be deemed the lawful parents of a child after a surrogate bears a biologically unrelated child on their behalf. A child was procreated because a medical procedure was initiated and consented to by intended parents. Therefore, both John and Luanne are the lawful parents of Jaycee.

The establishment of fatherhood and the consequent duty to support when a husband consents to the artificial insemination of his wife is one of the well-established rules in family law. In People v. Sorenson (1968) the court stated, "A reasonable man who . . . actively participated and consents to his wife's artificial insemination in the hope that a child will be produced whom they will treat as their own, knows that such behavior carries with it the legal responsibilities of fatherhood and criminal responsibility for nonsupport." A family court in New York held the lesbian partner of a woman who was artificially inseminated responsible for the support of their two children.

John argued that all forms of artificial reproduction in which the intended parents have no biological relationship to the child result in legal parentlessness. Thus adoption is necessary. Sills noted that public policy and common sense favor the establishment of legal parenthood with the concomitant responsibility. The Family Code section 7570 states that there is a compelling state interest in establishing paternity for all children. "It would be lunatic for the Legislature to declare that establishing paternity is a compelling state interest yet conclude that establishing maternity is not," noted Sills.

Sills held that Luanne and John should have been declared the lawful parents of Jaycee since they both consented to the act that brought the child into being. John alleged that Luanne promised to assume all responsibility for the child. Even if this were the case, "it could make no difference as to John's lawful paternity. It is well established that parents cannot, by agreement, limit or abrogate a child's right to support."

Sills concluded that the Buzzancas are Jaycee's lawful parents "given their initiating role as the intended parents in her conception and birth." Sills noted that in the most famous custody case of all times, described in the Bible in 1 Kings 3: 25-26, where two women claimed to be the mother of a newborn, intent to parent was the ultimate basis of the decision. Sills noted that King Solomon resolved the issue "by novel evidentiary device designed to ferret out intent to parent." Sills reversed the decision of the trial court and declared the Buzzancas the lawful parents of Jaycee. He also remanded the matter of child support so that an appropriate permanent child support order could be made.

The court called on the legislature to sort out the parental rights and responsibilities of those involved in artificial reproduction. The legislature can impose a broader order, which even though it might not be perfect on a case-by-case basis, would bring some predictability to those who seek to make use of artificial reproductive techniques.

Impact

California has formulated a rule of law that will help avoid the situation of a "parentless" child becoming the state's responsibility. The ruling also extended comprehensive legal protection to couples considering the use of donated gametes. Because of the ruling in In re Marriage of Buzzanca, it is no longer necessary for an intended mother to pursue a stepparent adoption. All intended parents can now finalize their parental rights through a judgment of maternity and paternity. This allows the initial birth certificate to be issued in the names of the intended parents. Thus an amended birth certificate does not need to be issued later.

At a symposium called "Changing Conceptions: How Science and Law Are Shaping Future Generations" at Chicago-Kent College of Law, several experts commented on the Buzzanca case. Arthur Caplan, director of the Center for Bioethics at the University of Pennsylvania said, "It's unacceptable to have a parentless child." R. Alta Charo, associate professor of law and medical ethics at the University of Wisconsin believes that Jaycee Louise Buzzanca has many parents. "The courts have not recognized that. The definition of legal parenthood is still the question. They should all be considered parents and worry about the custodial issue within that group." Some experts in the field have called for a U.S. regulatory system for new reproductive technologies to protect the welfare of the children created and to clarify the rights and responsibilities of the adults involved.

Related Cases

• People v. Sorenson, 68 C.2d 280 (1968).
• In the Matter of Baby M, 537 A.2d 1127 (1988).
• Johnson v. Calvert, 5 C.4th 84 (1993).
• Doe v. Doe, 710 A.2d 1297 (1998).