Family Law Keyed to Weisbergback
Citation. In re Marriage of Buzzanca, 61 Cal. App. 4th 1410, 72 Cal. Rptr. 2d 280, 1998 Cal. App. LEXIS 180, 98 Cal. Daily Op. Service 1782, 77 A.L.R.5th 775, 98 Daily Journal DAR 2436 (Cal. App. 4th Dist. Mar. 10, 1998)
Brief Fact Summary. Luanne and John had an embryo genetically unrelated to either of them implanted in a surrogate. The couple separated, and John disclaimed any parental responsibility for the child.
Synopsis of Rule of Law. When a married couple consent to in vitro fertilization by unknown donors and subsequent implantation into a surrogate, the couple are the legal parents of the offspring.
Facts. Jaycee was born as a result of Luanne and John Buzzanca’s decision to have an embryo genetically unrelated to either of them implanted in a woman surrogate, who would carry and give birth to the child for them. After the pregnancy, Luanne and John split up, and the question arose as to who were Jaycee’s lawful parents. Luanne claimed she and her erstwhile husband where the lawful parents, but John disclaimed any responsibility, financial or otherwise. The woman who gave birth made no claim to the child. The trial court determined that Jaycee had no lawful parents.
Issue. Did the trial court err in its determination that Jaycee had no lawful parents?
Held. The trial court erred because it assumed that legal motherhood under California statute could only be established in one of two ways, either by giving birth or by contributing an egg.
Jaycee would ever have been born had not Luanne and John both agreed to have a fertilized egg implanted in a surrogate. The trial court failed to consider that there are times when fatherhood can be established by conduct apart from giving birth or being genetically related to a child, including artificial insemination. Just as a husband is deeded to be the lawful father of such an unrelated child, so should husband and wife be deemed the lawful parents of a child after a surrogate bears a biologically unrelated child on their behalf. In both cases a child is procreated because a medical procedure was initiated and consented to be intended parents. Therefore this Court reverses the trial court’s judgment, and enters a judgment declaring Luanne and John the lawful parents.
John contends the surrogate is Jaycee’s legal mother, and the surrogate’s husband is the legal father under the Uniform Parentage Act (Act). He argues that under the act, a woman can establish motherhood only by giving birth or contributing genetically. Because the genetic contributors are unknown, the only candidate left is the surrogate. He argues that if the surrogate and her husband cannot support Jaycee, the burden should fall on the taxpayers. Contrary to his claim, in addition to blood tests there are other ways the Act allows paternity to be established that are not necessarily related to any biological tie. These include marrying the child’s mother or the case of artificial insemination of the man’s wife.
Courts must construe statutes in factual settings not contemplated by the enacting legislature. Even if the procedure in this case may not have been contemplated, it is exactly analogous to artificial insemination it that both contemplate the procreation of a child by the consent to a medical procedure of someone who intends to raise the child but who otherwise does not have any biological tie. If a father who consents to artificial insemination is treated in law as the father of the child by virtue of his consent, there is no reason the result should be different when a married couple consent to in vitro fertilization by unknown donors and subsequent implantation into a surrogate.
The common law doctrine of estoppel is also applicable. This doctrine has been applied in the artificial insemination scenario, and the fact that Luanne did not give birth is irrelevant based on the purposes of the statute with its core idea of estoppel. Between the two women who would both be able to establish motherhood under the Act, precedent mandates the tie be broken in favor of the intended parent, in this case, Luanne.
John argues that surrogacy contracts have been found unenforceable, but there is a difference between a court’s enforcing a surrogacy agreement and making a legal determination based on the intent expressed in a surrogacy agreement. The legal paradigm adopted by the trial court would mean that absent adoption, the child would be a dependent of the state. It would, in effect, make the default position adoption. This is inconsistent with both statutory law and prior precedent. The legislature has made it clear that public policy favors the establishment of legal parenthood.
The same reasons that impel the Court to conclude that Luanne is Jaycee’s lawful mother require that John be declared the lawful father. Parents cannot, by agreement, limit or abrogate a child’s right to support. Even though neither John nor Luanne is biologically related to Jaycee, they are still her lawful parents given their initiating role as the intended parents in her conception and birth.