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Buzzanca v. Buzzanca: The Ruling
and Ramifications
by
Andrew W. Vorzimer, Esq.; Milena D. O'Hara, Esq.; Lori D.
Shafton, Esq.
Jaycee was conceived by an anonymous embryo
donation implanted into a gestational surrogate. The surrogate
and the Buzzancas had entered into a surrogacy contract
in which the surrogate agreed to carry and give birth to
a child for them. However, approximately one month before
Jaycee was born, John petitioned for dissolution of their
marriage. Although Luanne claimed she was the lawful mother,
John asserted that he was not responsible in any way towards
Jaycee. Despite the fact that the surrogate appeared to
disclaim any assertion that she was the legal mother, the
trial court stated neither the surrogate nor Luanne was
the legal mother. Further, it held that John could not be
the legal father. The court's basis for these assertions
was a strict, and even incorrect, reading of the Uniform
Parentage Act: to be a legal parent, one must either be
genetically related to the child or have given birth to
the child. Following this reading, the court found that
neither Luanne nor John satisfied either of these requirements.
California Appeals Court reverses "No
Parents" decision in surrogacy case
The renowned "parentless" child
resulting from a surrogacy arrangement finally knows who
her legal parents are. Yesterday, the California Court of
Appeal for the Fourth Appellate District ruled that John
Buzzanca and Luanne Buzzanca are the legal father and mother
of Jaycee, now three years old. The basis for the court's
conclusion was the rule that parental relationships may
be established when intended parents initiate and consent
to medical procedures, even when there is no genetic relationship
between them and the child. Buzzanca v. Buzzanca, Sup. Ct.
No. 95D002992 (filed 3/10/98).
Uniform Parentage Act criteria is not
exclusive
The appellate court's reasoning in reversing
the trial court begins with Section 7610 of the Uniform
Parentage Act. That section states: "The parent and
child relationship may be established as follows: (a) Between
a child and the natural mother, it may be established by
proof of her having given birth to the child, or under this
part; (b) Between a child and the natural father, it may
be established under this part; (c) Between a child and
an adoptive parent, it may be established by proof of adoption."
(Emphasis added).
First, the court clarifies that the phrase
"under this part" means through genetic consanguinity,
as so held in Johnson v. Calvert. Thus, the three listed
methods of establishing a relationship are through genetic
ties, giving birth or through adoption. In analyzing this
section, the court emphasizes the word "may" as
meaning that this list of these methods to determine parentage
is not exclusive, and it may in fact be determined in other
ways. This is evidenced by the fact that under section 7611,
a man may establish paternity by being married to the mother
when she gives birth, or marrying her thereafter if he either
consents to being named the father, or promises in writing
to support the child. It is possible that he may not be
genetically related to the child, but he may nevertheless
establish paternity.
Parental relationships may be established
when consent is given and medical procedures initiated
Having clarified that the methods in section
7610 are not exclusive, the court held that parental relationship
also may be established when medical procedures are initiated
and consented to by the intended parents, even when there
is no genetic relationship between them and the child. The
basis for this groundbreaking holding are found in section
7610, section 7613 and basic common law estoppel principles.
First, as already discussed, section 7610
does not provide an exclusive choice of methods to establish
a parental relationship. Apparently, the court is willing
to expand the list of methods to keep up with technology,
despite the absence of explicitly supporting legislative
history: "[C]ourts must construe statutes in factual
settings not contemplated by the enacting legislature."
(quoting Johnson v. Calvert, 5 Cal.4th 84, 89 (1993).
Second, the court relies on section 7613
of the UPA: "If, under the supervision of a licensed
physician and surgeon 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 focal point of this section is "consent".
In the case at hand, a gestational surrogate was implanted
with the genetic material of unknown donors. The statute
explicitly covers a woman who is implanted with the semen
of one other than her husband. Despite the obvious dissimilarities,
the court focuses on the intent to procreate, which is present
in both situations: "Both contemplate the procreation
of a child by the consent to a medical procedure of someone
who intends to raise the child but who otherwise does not
have any biological tie. . . . If a husband who consents
to artificial insemination under section 7613 is ‘treated
in law' as the father of the child by virtue of his consent,
there is no reason the result should be any different in
the case of a married couple who consent to in vitro fertilization
by unknown donors and subsequent implantation into a woman
who is, as a surrogate, willing to carry the embryo to term
for them. The statute is, after all, the clearest expression
of past legislative intent when the legislature did contemplate
a situation where a person who caused a child to come into
being had no biological relationship to the child."
Third, under common law estoppel principles,
exemplified in the case of People v. Sorenson, the court
states that "[b]y consenting to a medical procedure
which results in the birth of a child – which the
Sorenson court held establishes parenthood by common law
estoppel – a husband incurs the legal status and responsibility
of fatherhood." (citing People v. Sorenson , 68 Cal.2d.
280 , 285 (1968)). The court uses this as a basis by expanding
the Sorenson decision to include establishing maternity,
and by reading the case in conjunction with section 7613,
which has its roots in Sorenson. Accordingly, under the
second and third bases for its ruling, the court states
that both parents may establish parenthood based on their
consent to a medical procedure intended to bring a child
of their own into the world.
Court establishes legal "mother"
in surrogacy agreements
Further, the court is careful to point
out the compelling state interest in avoiding a "parentless"
child situation, not burdening taxpayers, and establishing
paternity, as explicitly stated in UPA section 7570(a).
The court states that the Johnson v. Calvert case clearly
precludes a court from declaring the surrogate or an egg
donor the legal parents of a child conceived from a surrogacy
arrangement. Thus, not only is the decision to analyze maternity
the same as paternity under the UPA, as explained above,
logical, but it also avoids the question as to who is the
legal mother of the child.
Accordingly, the court ruled the parental
relationship between the Buzzancas and Jaycee was established
by evidence that medical procedures were initiated and consented
to by Buzzancas, even though neither was genetically related
to Jaycee, and Luanne did not give birth to her. As the
court quotes Professor Hill, a legal commentator on the
subject, the intended parents are the "first cause,
prime movers, of the procreative relationship."
Paternal responsibilities established
The court rejected John's arguments that
the contract was not signed before the procedure, and that
Luanne promised to assume all responsibility for Jaycee's
care. First, the court briefly acknowledged the first argument,
stating there was an agreement, despite that it was not
in writing before the implantation. Second, the court emphasized
that even if Luanne promised to assume all responsibility
for Jaycee's care, he is nevertheless the father and may
not avoid his financial responsibilities. It stated that
the law is clear: "parents cannot, by agreement, limit
or abrogate a child's right to support." John, who
engaged in "procreative conduct", was established
as Jaycee's father, and as such was responsible for her
support.
Although the court has clarified important
issues in regards to surrogacy arrangements, it recognizes
the need for legislative action to sort out the parental
rights and responsibilities arising out of assisted reproductive
technologies, as the UPA is "imperfectly designed."
Stage set to replace costly step-parent
adoptions with pre-birth judgments
The ramifications of this case are potentially
ground-breaking. If one was to expand the holding to cover
traditional surrogacy arrangements, one could conclude that
because the medical procedures would be initiated and consented
to by the intended parents, maternity may be established
through a judgment, rather than a step-parent adoption.
This is because it could be established by a manner other
than those listed in section 7610; adoption being the only
option for an intended mother who neither gives birth or
uses her genetic material. If one utilizes section 7613
to establish maternity, then the intended mother's consent
to the insemination of her husband's sperm into a surrogate
would require a simple pre-birth judgment of maternity and
paternity to establish her parenthood. * Even more fundamentally,
the Court's decision signals the possible departure from
previously accepted dogma that traditional surrogacy is,
and must be, treated differently from gestational surrogacy.
Expansion of the Calvert v. Johnson "intent of the
parties" approach to traditional surrogacy, will permit
otherwise financially strapped infertile couples the opportunity
to avail themselves of surrogacy and enjoy the same legal
protections as those couples who utilize gestational carriers.
It was once urged that when intended parents
have no genetic relation to the child, the child is to be
"parentless" and the state's responsibility. Now,
at least California has enunciated a rule of law that will
help avoid such situations; a rule progressive enough to
encompass current and anticipated future medical technologies.
Equally important, the Buzzanca court has extended comprehensive
legal protection to couples considering the use of donated
gametes, including oocytes and embryos, in an area which,
heretofore, represented a legal black hole. In so doing,
California has reasserted its position as arguably the most
favorable jurisdiction in the world for infertile couples
contemplating the use of assisted reproductive technologies.
March 11, 1998
*EDITOR'S NOTE:
Following the publication of this article,
the authors were successful in petitioning the Los Angeles
Superior Court for a Judgment of Maternity on behalf of
an Intended Mother, who along with her husband (the biological
father), worked with a traditional surrogate. The Judgment
of Maternity, issued on March 17, 1998, permitted the Intended
Mother to finalize her parental rights without having to
undergo a step-parent adoption.
Consequently, it will no longer be necessary
for an Intended Mother to pursue a step-parent adoption
and the legal, financial and administrative hardships typically
associated with step-parent adoptions. Rather, all Intended
Parents can now finalize their parental rights through a
Judgment of Maternity & Paternity (in most cases, prior
to the birth of their child) regardless of whether they
use a traditional or gestational surrogate. This procedure
will also allow the initial birth certificate to be issued
in the names of the Intended Parents, obviating the need
to secure an amended birth certificate.
The elimination of the disparate treatment
historically associated with traditional surrogacy will
hopefully encourage more couples to consider assisted reproduction
as a viable option to begin their families.
[ Return to Journal of Assisted Reproductive Law ]
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