Buzzanca v. Buzzanca: The Ruling and Ramifications
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
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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