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Buzzanca v. Buzzanca: The Ruling and Ramifications

Last Updated: May 10, 2004
Page: 2


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.



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