Surrogate Ruling Leaves a Girl, 2, Legally Parentless

In what an appeals court has called “the most extraordinary” surrogacy case yet, a judge decided that an Orange County man does not have to financially support a baby that he and his ex-wife hired a surrogate mother to bear with anonymous donations of egg and sperm.

Appellate court justices had ordered the would-be father to pay child support until a lower-court judge ruled on the man’s contention that he never legally became the child’s father.

In a ruling made public Monday, Orange County Superior Court Judge Robert D. Monarch said the man, John Buzzanca of Costa Mesa, no longer has to pay his former wife, Luanne, $386 a month to support the 2-year-old girl who bears his surname.

The couple hired a surrogate mother in 1994 to bear the girl, Jaycee Louise Buzzanca. But one month before her birth, in March 1995, the husband sought to relieve himself of responsibility for the child when he filed for divorce.

Monarch’s decision effectively leaves the child without legal parents.

Apart from declaring that John Buzzanca was not financially liable for the child, the judge also held that Luanne Buzzanca, who has custody, “is not entitled to be declared the legal mother of . . . Jaycee, at this time.”

Jaycee’s parentage problem became even more tangled at one point when the surrogate mother, identified in court papers as Pamela Snell of Northern California, filed court papers seeking custody of the girl.

Snell said she had agreed to deliver the child to loving and caring parents, not to a squabbling couple battling over child support and parentage.

Snell has since withdrawn her claim.

Legal experts say Jaycee’s case illustrates how key issues of parental responsibility in surrogate contracts remain unresolved.

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The issue will now have to be decided by the 4th District Court of Appeal in Santa Ana, which previously considered one aspect of Jaycee’s case and issued groundbreaking decisions in two other surrogacy cases.

Monarch’s decision on the father’s financial responsibility, previously under seal in Superior Court, was made public Monday in an appeal filed by Huntington Beach attorney Jeffrey W. Doeringer, who represents the toddler.

Doeringer expressed disappointment with the judge’s ruling.

“Everyone needs to have legal parents, so why should one of the intended parents get off the hook when he helped to create her? Jaycee deserves no less than any other child,” he said.

Robert R. Walmsley, an attorney for Luanne Buzzanca, said he plans to join the appeal filed by the child’s attorney.

“It’s unacceptable that this kid is legally parentless,” Walmsley said. “The reality is my client has been the mother from Day 1, yet she is being denied recognition by the court.”

According to court records, the Buzzancas, who were married in 1989, were a childless couple who obtained an egg and sperm from anonymous donors. The egg was fertilized with the donated sperm and then implanted in the surrogate.

The contract between the Buzzancas and the surrogate mother stated that the offspring would legally be the child of the married couple, according to court documents.

When John Buzzanca, a paralegal, filed for divorce, his wife went to Family Court seeking child support.

In court, the husband admitted that he signed the surrogacy contract, but contended that since no court had established that Jaycee was a “child of the marriage,” no family law court could order him to pay child support.

A judge agreed, and Luanne Buzzanca took the matter to the appeals court, which determined that the family court had jurisdiction to hear the matter.

“We need not--and do not--decide at this juncture whether the child is legally the husband’s daughter,” wrote Presiding Justice David G. Sills in a February 1996 decision, noting that the signed surrogacy contract was sufficient to show by a preponderance of the evidence that Jaycee was John Buzzanca’s daughter, and that he should pay child support.

“It is enough that John admits he signed the surrogacy agreement which, for all practical purposes,” Sills wrote, “caused Jaycee’s conception every bit as much as if he had caused her birth the old-fashioned way.”

In his appeal, Doeringer said the case presents novel legal questions and will affect “many intended parents like Luanne and John” and be felt “more heavily upon Jaycee and others like her, brought into this world by methods of advanced medical and technical achievements.”

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He said that “Jaycee would ask, indeed beg if necessary” that the appeals court issue a temporary order awarding legal custody of the infant to Luanne Buzzanca.

“There appears no one else that could possibly fit this role in this entire world and the trial court refusal to issue the order ignores reality and ignores Jaycee’s . . . welfare,” Doeringer wrote in his appeal.

Scott A. Altman, an associate dean at USC Law School, said he would not be surprised if the appellate court reverses Monarch’s order on child support.

“I think the judge is making a mistake here,” said Altman, who writes and lectures on surrogacy law. “In circumstances where child support is an issue, the question should be, who is it fair to ask for child support payments? Having caused the child to come into existence with full knowledge of the likely consequences of one’s action is the usual basis for assigning child support.”

Altman said the case is familiar territory for the 4th District judges.

In 1991, justices upheld a precedent-setting verdict against Anna Johnson, who bore a child for an infertile couple, Mark and Crispina Calvert of Tustin.

The child, Christopher Michael Calvert, was conceived in vitro from the Calverts’ sperm and egg at UC Irivne’s now defunct fertility clinic, and the resulting embryo was placed in Johnson’s uterus. The couple had agreed to pay Johnson $10,000 to carry the child to term and give them custody of him at birth.

However, Johnson sued for custody in 1990, alleging breach of contract by the Calverts, and the couple counter-sued. The issue was settled three years later in the state Supreme Court, which ruled that the Calverts were Christopher’s legal parents. Johnson appealed to the U.S. Supreme Court, which refused to review the case.

In 1994, the appeals court reaffirmed a surrogate mother’s parental rights in another case, but ordered a lower court to decide who would get primary custody of a 4-year-old girl whose surrogate mother and biological father were granted joint custody. Last year, a Superior Court judge awarded primary custody to the man after determining that the child would be better off with him.