Fragmenting procreation.

AuthorPitt, Jonathan B.
PositionCalifornia - Case Note

In re Marriage of Buzzanca, 72 Cal. Rptr. 2d 280 (Ct. App. 1998), review denied, No. S069696, 1998 Cal. LEXIS 3830 (June 10, 1998).

In recent years society has developed a range of novel technological and legal means to help people overcome infertility and the inability to gestate. As a result, the components of procreation have become increasingly fragmented: The role of "mother" no longer necessarily refers to a woman who both provides the ovum for a child and gestates her, and the role of "father" no longer necessarily refers to a man who provides sperm.(1) As it becomes increasingly possible to assign the different procreative roles to different individuals, legislatures and courts find themselves facing new questions of how to value those components, particularly when the parties assign procreative roles in a manner that poses hitherto unimagined conflicts.

In March 1998, California's Fourth District Court of Appeal handed down a widely noted(2) opinion in which it ruled that a father who consented to a surrogacy arrangement with a gestational surrogate,(3) using anonymously donated sperm and eggs, could not evade financial responsibility for supporting the resulting child simply because he had no biological relationship to her.(4) In this case of first impression, the court held that although neither intended parent had any genetic or gestational relationship to the child, their procreative intent established them as the child's legal parents.(5)

Faced with a situation in which both the surrogate mother and the intending father disclaimed responsibility for a child, the court was right to impose responsibility on the father, who, unlike the surrogate, had obligated himself to become a legal parent of the child. The ruling is problematic, however, for two reasons. First, the court used a statute that was by it terms intended to apply to artificial insemination, not to surrogacy arrangements. Second, the ruling could lead to the undervaluation of the gestational role of surrogates in custody battles that are likely to arise in the future.

I

John and Luanne Buzzanca wished to have a child but were unable to do so via conventional means. Instead, the couple obtained the sperm and eggs of anonymous donors, fertilized an embryo in vitro, and implanted it in the uterus of a woman who had agreed to serve as a surrogate. Approximately one month before the child was born, Mr. Buzzanca initiated proceedings to terminate the Buzzancas' marriage. In his petition, he alleged that the couple had no children. In Ms. Buzzanca's response papers, she alleged that the couple was expecting a child by way of surrogacy contract, and argued that Mr. Buzzanca should be held responsible for providing support to the child as the legal father. Jaycee Buzzanca was born six days later, and the surrogate and her husband did not seek to become Jaycee's lawful parents. At an oral heating to determine the parenthood of Jaycee and the support, if any, owed by Mr. Buzzanca, the trial court ruled that the child was a legal orphan.(6)

The Court of Appeal reversed, holding that because the Buzzancas had initiated the arrangement that resulted in Jaycee's birth, they were the lawful parents, and each was to contribute to Jaycee's support. The court ruled that Ms. Buzzanca was similarly situated to a husband in an artificial insemination case,(7) because although she had no genetic relationship to the child, her consent initiated the medical procedure that resulted in the gestation and birth of the child. Since California law holds that a husband who consents to the artificial insemination of his wife is deemed the lawful father of the genetically unrelated child,(8) the court reasoned, intent should also be sufficient to award motherhood to the wife in a gestational surrogacy situation in which both the sperm and the ova are obtained from anonymous donors.(9) As for Mr. Buzzanca, the court ruled that the principle of estoppel--as manifested by the artificial insemination statute--prevented him from disclaiming responsibility for Jaycee since his consent had initiated the surrogacy arrangement that was responsible for Jaycee's life.(10) In sum, the court concluded that "a husband and wife [should] be deemed the lawful parents of a child after a surrogate bears a biologically unrelated child on their behalf."(11)

II

While the procreative arrangement the Buzzancas used may seem unusual, there are many reasons to believe that American courts will be asked to rule on parental rights in such situations with increasing frequency.(12) Nevertheless, although the number and complexity of surrogacy cases have grown tremendously since the early 1980s,(13) states have not enacted laws that adequately define the parental relationships of the individuals who enter into gestational surrogacy agreements,(14) and no state has yet enacted a law addressing the legal status of persons like the Buzzancas. Thus, courts faced with such questions must look either to statutes that were never intended to cover the situation at hand or to the rulings of other courts that have adjudicated these issues. California leads the world in surrogacy litigation;(15) its judicial decisions are likely to have a far-reaching impact throughout the nation.

The Buzzanca case was atypical of surrogacy litigation because only one of the participants wanted to be judicially declared the child's legal parent; all others actively sought to...

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