What Makes a Parent? Courts Often Decide

Here in the ‘90s, everyone seems to be having babies: Infertile couples. Homosexual couples. Transsexuals. Even dead people.

Only a few months ago, a retired Anaheim couple sought to grant their dead daughter’s wish to leave them a grandchild.

They hired a surrogate to carry embryos their daughter bequeathed them after she learned she was dying from leukemia and had some of her eggs fertilized with sperm her father helped her purchase from a Westwood sperm bank.

The surrogate chosen by the would-be grandparents miscarried and the effort to produce a child was finally abandoned in December. But the incident left ethicists scratching their heads and wondering: What next?

The courts could have been left to grapple with the question of parental responsibility, since any child was to be given to the dead woman’s brother.

Judges find woefully few answers in the law books when confronted with cases such as this, and others that are surfacing with increasing regularity.

When lawmakers wrote the 19th century statutes defining parenthood, they never envisioned that in the 20th century thousands of people would have babies without having sex. Back then, the law said you were a parent only if the child was blood-related and, for men at least, conceived within wedlock.

But in the most recent ruling broadening the definition of parenthood, a state appeals court in Orange County said you are a parent if you sign a contract that brings a child into the world. It matters not, the court said, whether you and the baby share the same genes.

The ruling also gave these contract mothers the same legal standing as their spouses, eliminating the need for women to go through an adoption process while their husbands did not.

The three-judge panel of Santa Ana’s 4th District Court of Appeal was ruling in a devilishly complex case involving a 2-year-old girl with six potential parents: an anonymous man and woman whose sperm and egg were brought together in a laboratory dish; a surrogate mother--and her husband--who agreed to bear the child; and the married couple who hired the surrogate but were locked in divorce proceedings before the child’s birth.

The court’s ruling provided the best news yet for those who want to be parents and choose to have children through surrogates, but were plagued with doubts about their legal rights.

It also marked the first time any court had ruled that biology was less important than intent in surrogacy cases--a notion that seems to be catching on.

Bar Seeks to Define Parental Responsibility

A committee of the American Bar Assn. will soon propose that courts across the nation hold would-be parents who hire others to create babies primarily responsible for the offspring.

“By looking to intent of the parties, courts could develop consistent policies in determining parentage,” said Ami Jaeger, a Santa Fe attorney who helped draft the ABA’s Model Assisted Reproductive Technology Act, which will be presented at the ABA’s convention in Toronto this summer.

The need for consistent guidelines has never been greater, said Andrew W. Vorzimer, a Beverly Hills attorney whose firm currently is handling 500 surrogacy and egg donation cases, compared to 100 cases five years ago.

Since the world’s first test tube baby was born in Britain 20 years ago, about 300,000 children have been created with some form of assistance, according to Nanette Elster, a research fellow at the Institute for Science, Law and Technology in Chicago.

Laboratory procedures were responsible for 16,300 children being born in the U. S. in 1995, the last year for which statistics are available, according to the American Society for Reproductive Medicine. That represents a 225% increase over 1991.

This soaring demand for assisted childbirth also is spawning a new breed of surrogacy services, some of them reaching out to would-be parents on the Internet.

Hopeful parents in Canada, for example, can hit a couple of key strokes on their home computers and hook up with the future “bio-parents” of their child on the World Wide Web. Joan Barnes, president of https://www.surrogacy.com, a firm operating out of Marietta, Ga., said 20 babies--including triplets born to a Canadian couple--have been created so far by people who made surrogacy or egg donation arrangements through her Web site.

Then there’s what is known as the “Gayby boom,” the rush by homosexual couples to have babies. One firm, Growing Generations in West Los Angeles, exclusively matches gay men who want to have children with surrogate mothers.

There’s also a developing trend toward “embryo adoption,” where prospective parents can buy embryos that have been frozen and stored, ready for implanting in a woman’s womb.

In his acclaimed book “Remaking Eden,” Lee M. Silver, a science professor at Princeton University, describes scenarios where children in the future would distinguish between their “bio-dads” and “social-dads” and between their “gene-moms, birth moms and social moms.”

Because there is a dearth of law dealing with the many new birth scenarios, some children end up in legal limbo when relations between their contract parents sour.

In one case, a Sacramento appeals court ruled that a lesbian who helped create and raise a child didn’t have any parental rights.

The case involved Barbara West and Pamela Lockrem, a lesbian couple from Sacramento who decided to have a child together and jointly purchased a vial of sperm they used to impregnate West.

In April 1995, the couple separated, agreeing to share parental responsibilities for the child, then 2 years old. But that arrangement didn’t work out, and one of the women soon went to court.

Acting on a suit by Lockrem, a Superior Court judge said Lockrem should enjoy parental rights, and ordered West to allow her two weekends each month with the child.

But an appeals court reversed that order, saying the lower court lacked the authority to entertain a “nonparent’s” claim.

Following that decision, the California Senate acted on a request by state judges and passed a bill conferring some parental rights on people who have bonded with a child, yet have no genetic links.

The legislation faces an uncertain future in the Assembly, where it has yet to be considered.

Courts Say Parenthood Goes Beyond the Genes

A 3-year-old Orange County girl also faced the possibility of having only one legal parent when her mother filed for divorce in 1995.

Kristie Vecchione, 27, of Rancho Santa Margarita, claimed that her marriage to 40-year-old Joshua Vecchione, of San Clemente, was invalid, because California doesn’t recognize same-sex marriages.

Joshua was born a female and was known as Janine until a sex change 20 years ago.

Although they used sperm from Joshua Vecchione’s brother to create the child, Kristie sought sole custody, arguing that the marriage was invalid and she alone had direct blood ties to the youngster.

But a judge ruled that Joshua should enjoy the same custody rights as any father, because California recognizes the post-operative gender of transsexuals, hence theirs was not a same-sex marriage. The Vecchiones have joint custody of the girl pending a divorce trial later this year.

The Orange County case that promises to change the landscape of surrogacy law at one time seemed too bizarre to be real.

In fact, for years professor Arthur Caplan, an ethicist at the University of Pennsylvania School of Law, presented doubting students with a hypothetical case involving a child with six potential parents.

That scenario came to pass on April 26, 1995, when Jaycee Buzzanca entered the world, swaddled in legal uncertainty.

Jaycee was the product of what is known as collaborative reproduction.

After years of trying--and failing--to have a baby the old-fashioned way, John and Luanne Buzzanca of Orange County decided to have one made for them.

Pamela Snell of Fremont, a professional surrogate who had carried babies for three other couples, agreed to be implanted with an embryo created from an egg and sperm the Buzzancas purchased from anonymous donors.

The surrogacy contract between Snell and her husband on one side, and the Buzzancas on the other, stated that the offspring would legally become the child of the Buzzancas. But it also warned that reliance on third-party egg and sperm donors made parenthood legally unpredictable.

That clause proved prophetic.

Two weeks after the contract was signed, John Buzzanca, a Costa Mesa paralegal, separated from his wife. A month before Jaycee’s birth, he filed for divorce.

Luanne Buzzanca, a dog obedience trainer, later filed an action in family court demanding child support.

Orange County Superior Court Judge Robert Monarch rejected Luanne Buzzanca’s demand, and eventually ruled that Jaycee had no legal parents.

Under California law defining motherhood, Luanne was not the legal mother, because she was neither the gestational or genetic mother, nor had she adopted the child.

John Buzzanca, the judge said, also did not fit the law’s definitions of a father. He was not biologically related, he wasn’t the adoptive father, he wasn’t married to Luanne or assuming the role of a father when Jaycee was born.

Pamela Snell had renounced any claim to parenthood, as had her husband. The biological parents were unknown.

All that considered, Monarch ruled that Jaycee had no legal parents, that John had no duty to pay child support, and that Luanne would have to adopt Jaycee to establish parenthood.

But Monarch’s decision was appealed to the 4th District Court of Appeal, which had issued other precedent-setting cases involving surrogacy.

In a ruling this month, the court reversed Monarch, creating a new category of parenthood.

By contracting for a medical procedure resulting in the birth of a child, a couple incur “the legal status of parenthood,” wrote David G. Sills, the court’s presiding justice.

“It makes no difference that John’s wife, Luanne, did not become pregnant,” Sills said.

By signing the surrogacy agreement, John engaged in “procreative conduct.”

Decision Has Potential Beyond State Bounds

The court’s ruling was unprecedented, marking the first time any court had held that biology trumps intent.

Lori B. Andrews, who teaches about law and reproductive technology at Chicago-Kent College of Law, said the opinion has the potential to leap state boundaries, even though it is binding only in California.

“There aren’t many principles to guide courts [in other states] about how to determine parental rights and responsibilities,” Andrews said.

“As more children are being born through reproductive technologies, [other] courts could agree. . . that you can be the child’s legal parent even though you’re not carrying it,” the law professor said.

The fallout from the Santa Ana court’s decision was almost immediate.

Among the beneficiaries are Graham C. Rennie and Tanya E. O’Connell, an Australian couple who hired a Riverside surrogate to bear them a child.

Morgan Laura Rennie, a little girl with reddish hair, was born in a Los Angeles hospital on March 7, after Rennie’s sperm and an egg from the surrogate, Lorrie Ann Vaughan, came together in a petri dish.

Even before the child was born, Rennie’s attorney, Vorzimer of Beverly Hills, had secured a judgment declaring Rennie, the sperm donor, the legal father.

But for his wife to become the legal mother, she would have had to go through what is known as a step-parent adoption.

Because that process can take 18 months in Los Angeles, the couple had planned to fly to Indiana, where it can be completed in four days.

But after the Buzzanca ruling, the couple canceled their travel plans.

Two weeks ago, their attorney cited the ruling and succeeded in getting Los Angeles Superior Court Judge Juelann Cathey to declare O’Connell the legal mother.

With the stroke of a pen, motherhood was transferred from Vaughan to O’Connell.

“That’s the way it should be,” said O’Connell, a purser with Qantas Airlines. “I’m the real mom. I’m going to bring her up and care for her and love her. She’s my child.”

Vorzimer also plans to use the Buzzanca ruling to secure parental status for same-sex couples who would otherwise not be recognized as equal parents of surrogate-born children.

His first case involves a homosexual couple who hired a surrogate to carry an embryo made with a donor egg and sperm from one of the men, Vorzimer said.

Before the child’s birth this summer, Vorzimer will ask a judge to declare the sperm donor the legal father and designate his partner as a second parent.

Without the Buzzanca decision, the partner would have had to file for adoption.

Legal Issues Still Surround Surrogacy

Vorzimer and others say that the Buzzanca case is not enough to cure some of the legal problems spawned by surrogacy.

Lawmakers, they say, should focus on regulating the process, and require that surrogacy services screen would-be parents just as adoption agencies must do with adoptive parents.

Many in the assisted birth industry cringed last year when the Anaheim Hills couple hired the surrogate to bear their dead daughter’s child.

The couple, Howard and Jean Garber, ages 69 and 63, said they were carrying out the dying wish of their daughter, Julie, who died of leukemia in December 1996 at age 29.

Howard Garber said he even helped his daughter select the sperm that would eventually fertilize her eggs.

The sperm donor’s ancestors were Jewish and from the Ukraine, which pleased Garber because he is Jewish and his parents were from Russia.

The anonymous donor was also listed as a UCLA graduate and boasted that his parents were both attorneys, which meant “they are obviously intelligent people,” Garber said.

The Garbers say they didn’t plan to raise the child themselves, and would have turned the baby over to their son and daughter-in-law.

When the surrogate miscarried, Jean Garber said she was disappointed, “but I believe the embryos returned to Julie.”

Silver, the Princeton scientist, said lawmakers shouldn’t worry about crafting laws to restrict the ways people use reproductive technology to make babies.

“Whatever the curbs, people are going to use these technologies to fulfill their desires to have children,” Silver said in an interview.

“We shouldn’t look at the ways people have children, but at the ways people treat children after they are born.”

His view mirrors an old legal adage that there are no illegitimate children, only illegitimate parents.