Surrogacy Case Could Become Legal Benchmark

The status of the 2-year-old girl with curly blond hair has been in legal limbo ever since the would-be father, John A. Buzzanca, filed for divorce--a month before her birth--and sought to deny any financial responsibility for the little girl.

Last week, an appeals court swiftly stayed an Orange County judge’s decision that effectively left Jaycee without legal parents.

Superior Court Judge Robert D. Monarch had ruled that John Buzzanca was no longer responsible for $386 a month in child support payments, and that his former wife, Luanne Buzzanca, who has been caring for Jaycee since her birth, was “not entitled to be declared the legal mother.”

In temporarily staying Monarch’s decision, the 4th District Court of Appeal stated that an appeal, filed on behalf of the child by attorney Jeffrey W. Doeringer of Huntington Beach, “may have merit.”

Legal experts say that Jaycee’s case illustrates how extraordinary medical achievements in reproductive technology have outpaced laws. They predict that Jaycee’s case could become a legal benchmark in surrogacy law, and even lead to the redefinition of fatherhood in California.

Scott A. Altman, associate dean of the USC Law School, said it would be “a perfectly appropriate expansion of the law, if the appeals court says that someone is a father if he knowingly and intentionally brings a life into being, even if he’s not biologically related to that child.”

Lori B. Andrews, a professor at Chicago-Kent College of Law, said Jaycee’s case “casts a large shadow over all of family law.”

“If fathers are allowed to change their minds any time during pregnancy, it will create problems for the financial future of children in general,” said Andrews, who teaches a course related to reproductive technology.

Others say the case cries out for regulation of surrogacy.

“If there ever was a case to show a field in need of more regulation, this is the case,” said Arthur Caplan, who heads the Center for Bioethics at the University of Pennsylvania Medical Center.

“We should not have checkbook baby-creation of this kind. For a child to be born and be without parents for even a second, much less two years, is a pathetic indictment on [lawmakers] who should be regulating this field,” Caplan added.

Jaycee’s conception was arranged in 1994 by John and Luanne Buzzanca, a paralegal and dog trainer respectively. Both were 39 when they wed in May 1989.

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The couple had tried for several years to have a child, but after learning that her eggs and his sperm were not viable, the Buzzancas sought help from Kathryn Wyckoff, who runs the Center for Reproductive Alternatives of Southern California. For a fee, the Dana Point agency matches prospective parents with surrogates. Wyckoff did not return calls for comment.

The Buzzancas were put in touch with Pamela Snell, a Northern California mother of two. Snell, then 37, has been a surrogate for childless couples in a few other cases, according to court records.

The contract mentions the groundbreaking California Supreme Court decision involving a Tustin couple, Mark and Crispina Calvert, who had contracted with a surrogate to carry to term an embryo created from Crispina’s egg and Mark’s sperm.

The Calverts’ deal soured when the surrogate, Anna Johnson, claimed the child as her own. The state Supreme Court eventually ruled in favor of the Calverts, who had donated the egg and sperm, marking the first time a state high court enforced a surrogacy contract.

Noting the landmark decision, the Buzzancas’ contract pointed out that “while this ruling tends to create a climate favorable to surrogacy in California, there is still no legislative scheme endorsing it.”

The reasoning of the high court justices in the Calverts’ case could provide the answers for Jaycee’s parentage problem, legal experts say.

When the appeals court justices had their first brush with Jaycee’s case last year, they ordered John Buzzanca to pay child support until Judge Monarch could rule on his contention that he never legally became the baby’s father, because he filed for divorce before the child was born.

Buzzanca insisted in court papers he was not Jaycee’s father “in any legal sense.”

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

Legal experts say they are not surprised that another potential landmark surrogacy case is brewing in Southern California.

Although several states have enacted laws against surrogacy, California continues to be a world center of surrogate parenting, because of the presence of experienced fertility specialists, attorneys and psychologists.

In three separate surrogacy cases, including Jaycee’s, justices of the 4th District Court of Appeal in Santa Ana have called on the California Legislature to pass surrogacy laws “so that both parents and children can face the future with certainty over their legal status.”

After the Calverts’ case, the Legislature approved a law stripping a surrogate mother of all rights to a newborn in favor of the couple who intend to raise the child. But Gov. Pete Wilson vetoed the bill, saying the legislation wasn’t warranted in light of the paucity of disputed cases.

Andrews, the Chicago--Kent law professor, said “responsible lawmakers” should use Jaycee’s case to pass clear surrogacy laws.

“More children are being brought into this world by surrogacy,” Andrews said, “so the Legislature needs to catch up.”

In Jaycee’s case, Monarch suggested that her parentage problem could be solved if Luanne Buzzanca simply adopted the child. Attorneys for Luanne and Jaycee have resisted that idea, saying it would further complicate the case.

“If, under the contract, Luanne is already the intended mother, whom should she adopt from?” asked Doeringer, Jaycee’s attorney. “And since John would not participate in the adoption, wouldn’t that let him off the hook for child support?”

“Adoption is just another superfluous act that creates a multiplicity of other proceedings,” the attorney added. “Jaycee exists and should receive, no less than any other child, the right to a parent-child relationship, and the right to satisfy her daily needs. The people who brought her into this world should be made to pay.”

Altman, the USC law professor, said Jaycee’s case could expand the legal definition of “father.” Under California law, a man is deemed to be a father if he is the genetic father, adoptive father or married to the child’s mother at the time the child is born.

Since John Buzzanca doesn’t fit any of these categories, any decision holding him to be the father of Jaycee, even for child support purposes, would broaden that definition, Altman said.

“The court might well say that Mr. Buzzanca acted like a father by signing a surrogacy agreement,” Altman said. “Having acted that way, it would be unfair to allow him now to deny responsibility for causing a child to be brought into this world.”

By stating that Doeringer’s appeal may have merit, Presiding Justice David G. Sills has hinted that the court may decide in Jaycee’s favor.

In ruling that the court had jurisdiction to hear Jaycee’s child support claim, Sills cited a February 1996 decision that “John [Buzzanca] admits he signed the surrogacy agreement which, for all practical purposes, caused Jaycee’s conception every bit as much as if he had caused her birth the old-fashioned way.”

Sills also pointed out that the Supreme Court, in the Calvert vs. Johnson opinion, foresaw a situation resembling the facts in Jaycee’s case, in which there might be “an extreme, rare situation in which neither the gestator nor the woman who provided the ovum for fertilization is willing to assume custody of the child after birth.