Lawyers Hope Surrogacy Case Sets Precedent

SANTA ANA — King Solomon had it easy. He simply had to choose between two women fighting over the custody of a baby.

Three judges of a state appeals court in Santa Ana have a decidedly tougher task. They have to determine the parentage of a 2 1/2-year-old girl who conceivably has six parents.

This despite the fact that an Orange County Superior Court judge ruled that she was nobody’s child.

Not the married couple who hired a surrogate to bring her into this world, not the surrogate and her husband, not the anonymous couple who donated their egg and sperm for her birth.

The judge’s ruling prompted a plea to the 4th District Court of Appeal, which must now decide whether the man who helped hire the surrogate should pay child support and whether his now ex-wife should be declared the child’s legal mother.

Now some of California’s top legal eagles--ranging from Atty. Gen. Dan Lungren’s office to attorneys with the American Civil Liberties Union--are rallying behind the toddler, Jaycee Buzzanca of Santa Ana.

The attorneys say the case represents the brave new world of parenthood ‘90s-style, an era in which it’s no longer uncommon for five people to make a baby: a woman who donates her egg, a man who contributes his sperm, a surrogate who carries the fertilized egg, and two people who intend to raise the child.

Attorneys say the Buzzanca case provides the judges with an opportunity to spell out the rights and responsibilities of people who enter into such “collaborative reproduction.” A clear court opinion, the attorneys say, will ensure some stability for dozens of California children who are born each year through alternative means.

Under current state laws, “intended parents, donors and surrogates cannot be certain who will be the child’s parents,” said Leslie Ellen Shear, an Encino attorney who filed a brief with the appeals court for a state group of family law specialists.

“Although without guile or fault, but because of accident of birth, these children of the new biology have been deprived of certain basic rights,” Shear said.

These “children’s lives cannot be placed on hold during the years of litigation.”

The appeals court is reviewing the briefs filed by Shear and others. The panel is scheduled to hear oral arguments in the case early next year.

In October, the three-judge panel moved swiftly to help resolve little Jaycee’s plight when Presiding Justice David G. Sills ordered John A. Buzzanca, a Costa Mesa paralegal, to resume paying child support for the toddler--at least until the panel hears the case.

The court also granted temporary legal custody of the toddler to the man’s former wife, Luanne Buzzanca, who has been caring for the child since birth.

The Buzzancas had hired Pamela Snell, a married Northern California woman, in 1994 to bear the girl. One month before the child’s birth in March 1995, the husband sought to relieve himself of parental responsibility when he filed for divorce.

The issue of Jaycee’s parentage became even more tangled at one point when the surrogate filed court papers seeking custody of the girl. Snell contended that she had agreed to deliver the child to a happily married couple, not the people battling over divorce and parentage. Snell has since withdrawn her claim.

The appeals court order reverses--at least during the appellate process--two key rulings issued by Superior Court Judge Robert D. Monarch, who held in August that the man did not have to pay $386 a month to support Jaycee, and that Luanne Buzzanca was not entitled to be declared the legal mother. Monarch had ruled that Jaycee had no legal parents because the surrogacy contract, which assigned parental rights to the Buzzancas, was not enforceable under state law.

In some initial papers filed with the appeals court, an attorney for John Buzzanca contended that the surrogate should be held responsible for Jaycee, because she was the birth mother.

The attorney, Thomas P. Stabile of Orange, said if the court approved the unusual surrogacy arrangement, crack addicts, who cannot have children of their own and are turned down for an adoption based upon their habits, can simply hire someone to bear them a child.

But Jeffrey Doeringer, an attorney appointed to represent Jaycee, said he believes the appeals court will support his client’s right to receive financial support from her intended father and to maintain a mother-and-child relationship with Luanne Buzzanca.

Taylor Flynn, an attorney for the American Civil Liberties Union, said state law was clear that John Buzzanca could not change his mind and deny financial support for the little girl.

Flynn noted that the California Supreme Court held in a 1968 case that a man who consents to his wife’s artificial insemination knows that his behavior carried with it the legal responsibilities of fatherhood.

“One who consents to the production of a child cannot create a temporary relation to be assumed and disclaimed at will,” the case states.

Mary A. Roth, a deputy attorney general in the state’s Child Support Enforcement Unit, said Orange County taxpayers would have to support Jaycee unless John was ordered to help pay for her care.

In her brief, Roth urged the justices to declare “explicitly with whom those rights and responsibilities rest” when people contract to create a baby.

“As human reproductive technology advances and as human ethics and morality, as usual, lag behind, there is considerable potential for similar--or worse--fact situations to occur,” Roth said. “John and Luanne’s case may be the first of its like in California or anywhere else, but it certainly will not be the last.”

Shear, the Encino attorney, said she believes the court will follow Solomon’s wisdom.

“The essence of parenthood has remained unchanged,” Shear said. “It doesn’t matter whether the child was created in a test tube or the old-fashioned way, but who will best serve the needs of the child.”