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n re Marriage of Buzzanca, 61 Cal. App. 4th 1410
In re the Marriage of JOHN A. and LUANNE H. BUZZANCA. JOHN A. BUZZANCA,
Respondent, v. LUANNE H. BUZZANCA, Appellant.
Nos. G022147, G022157.
COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION THREE
61 Cal. App. 4th 1410; 72 Cal. Rptr. 2d 280; 1998 Cal. App. LEXIS 180; 77
A.L.R.5th 775; 98 Cal. Daily Op. Service 1782; 98 Daily Journal DAR 2436
March 10, 1998, Decided
SUBSEQUENT HISTORY: Review Denied June 10, 1998, Reported at: 1998 Cal.
LEXIS 3830.
PRIOR-HISTORY: Appeal from a judgment of the Superior Court of Orange
County. Super. Ct. No. 95D002992. Robert D. Monarch, Judge.
COUNSEL: Van Deusen, Youmans & Walmsley and Robert R. Walmsley for
Appellant.
Taylor Flynn and Mark Rosenbaum as Amici Curiae on behalf of Appellant and
Minor.
Schwamb & Stabile, Thomas P. Stabile and Mark A. Hewitt for Respondent.
Jeffrey W. Doeringer, under appointment by the Court of Appeal, for Minor.
Daniel E. Lungren, Attorney General, Roderick E. Walston, Chief Assistant
Attorney General, Carol Ann White and Mary A. Roth, Deputy Attorneys
General, and Leslie Ellen Shear as Amici Curiae on behalf of Minor.
JUDGES: Opinion by Sills, P. J., with Wallin and Crosby, JJ., concurring.
OPINION BY: SILLS
OPINION
SILLS, P. J.
INTRODUCTION
Jaycee was born because Luanne and John Buzzanca agreed to have an embryo
genetically unrelated to either of them implanted in a woman--a
surrogate--who would carry and give birth to the child for them. After the
fertilization, implantation and pregnancy, Luanne and John split up, and the
question of who are Jaycee's lawful parents came before the trial court.
Luanne claimed that she and her erstwhile husband were the lawful parents,
but John disclaimed any responsibility, financial or otherwise. The woman
who gave birth also appeared in the case to make it clear that she made no
claim to the child.
The trial court then reached an extraordinary conclusion: Jaycee had no
lawful parents. First, the woman who gave birth to Jaycee was not the
mother; the court had--astonishingly--already accepted a stipulation that
neither she nor her husband were the "biological" parents. Second, Luanne
was not the mother. According to the trial court, she could not be the
mother because she had neither contributed the egg nor given birth. And John
could not be the father, because, not having contributed the sperm, he had
no biological relationship with the child.
We disagree. Let us get right to the point: Jaycee never would have been
born had not Luanne and John both agreed to have a fertilized egg implanted
in a surrogate.
The trial judge erred because he assumed that legal motherhood, under the
relevant California statutes, could only be established in one of two ways,
either by giving birth or by contributing an egg. He failed to consider the
substantial and well-settled body of law holding that there are times when
fatherhood can be established by conduct apart from giving birth or being
genetically related to a child. The typical example is when an infertile
husband consents to allowing his wife to be artificially inseminated. As our
Supreme Court noted in such a situation over 30 years ago, the husband is
the "lawful father" because he consented to the procreation of the child.
(See People v. Sorensen (1968) 68 Cal. 2d 280, 284-286 [66 Cal. Rptr. 7, 437
P.2d 495, 25 A.L.R.3d 1093].)
The same rule which makes a husband the lawful father of a child born
because of his consent to artificial insemination should be applied here--by
the same parity of reasoning that guided our Supreme Court in the first
surrogacy case, Johnson v. Calvert (1993) 5 Cal. 4th 84 [19 Cal. Rptr. 2d
494, 851 P.2d 776]--to both husband and wife. Just as a husband is deemed to
be the lawful father of a child unrelated to him when his wife gives birth
after artificial insemination, so should a husband and wife be deemed the
lawful parents of a child after a surrogate bears a biologically unrelated
child on their behalf. In each instance, a child is procreated because a
medical procedure was initiated and consented to by intended parents. The
only difference is that in this case--unlike artificial insemination--there
is no reason to distinguish between husband and wife. We therefore must
reverse the trial court's judgment and direct that a new judgment be
entered, declaring that both Luanne and John are the lawful parents of
Jaycee. 1
FOOTNOTES
1 Technically, artificial insemination is classed as one of two kinds, (1)
with or (2) without using the husband's semen, known respectively as
homologous artificial insemination and heterologous artificial insemination.
(See People v. Sorensen, supra, 68 Cal. 2d at p. 284, fn. 2.) When we refer
to artificial insemination in this opinion we are only referring to the
heterologous variety.
CASE HISTORY
John filed his petition for dissolution of marriage on March 30, 1995,
alleging there were no children of the marriage. Luanne filed her response
on April 20, alleging that the parties were expecting a child by way of
surrogate contract. Jaycee was born six days later. In September 1996 Luanne
filed a separate petition to establish herself as Jaycee's mother. Her
action was consolidated into the dissolution case. In February 1997, the
court accepted a stipulation that the woman who agreed to carry the child,
and her husband, were not the "biological parents" of the child. 2 At a
hearing held in March, based entirely on oral argument and offers of proof,
the trial court determined that Luanne was not the lawful mother of the
child and therefore John could not be the lawful father or owe any support.
FOOTNOTES
2 John's attorney was present at the hearing when the court accepted the
stipulation that the surrogate was not the "biological" parent of Jaycee. He
made no objection. Yet in the respondent's brief on appeal and in oral
argument, he has argued that the surrogate is the lawful mother of Jaycee by
virtue of the biological connection of having given birth.
One reaction to this inconsistency might be to hold, simply, that John is
barred from arguing the point that the surrogate is the lawful mother
because he did not object to the surrogate being let off the hook when he
had the chance at the trial level. We reject that course of analysis because
in this case of first impression it would be an intellectual cheat.
Particularly in matters regarding children and parental responsibilities,
courts must be wary of allowing lawyers from trying to cleverly (or
inadvertently) maneuver a case into a posture where the court's decision
does not reflect the underlying legal reality.
The trial judge said: "So I think what evidence there is, is stipulated to.
And I don't think there would be any more. One, there's no genetic tie
between Luanne and the child. Two, she is not the gestational mother. Three,
she has not adopted the child. That, folks, to me, respectfully, is clear
and convincing evidence that she's not the legal mother."
After another hearing on May 7, regarding attorney fees, a judgment on
reserved issues in the dissolution was filed, terminating John's obligation
to pay child support, declaring that Luanne was not the legal mother of
Jaycee, and declining "to apply any estoppel proposition to the issue of
John's resp
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Fouth DCA Civ. No. G0022157/GO022147
COURT OF APPEAL OF THE STATE OF CALIFRNIA
FOR THE FOURTH APPELLATE DISTRICT
DIVISION THREE
In the Mrriage of
JOHN A. B.
Petitioner,
vs.
LUANNE H. B.
Respondent.
Fourth DCA Civ. G022157
Consolidated with
Fourh DCA Civ. G022147
OCSC Case No. 95D002992
AMICUS CURIAE
ASSOCIATION OF CERTIFIED FAMIY LAW SPECIALISTS
OPENING BRIEF IN SUPPORT OF
APPELLANT/PETITIONERJAYCEE B.
On Appeal From Trial Court Ruling Re:
Judgment on Reservd Issues,
of the Superior Court of California
for the County of Orange
The Honorable Judge Robert D. Monarch, Presiding
Leslie Ellen hear, CFLS (The State Bar of California Board of Legal
Specialization)
State Bar No. 72623
16830 Ventura Boulevard, Suite 351
Encin, California 91436
Attorney for Amicus Curiae
Association of Certiied Family Law Specialists
CONTENTS
COMBINED STATEMENT OF FACTS ND STATEMENT OF THE CASE 1
"Sometimes I Feel Like a Motherless Child"
INTRODUCTION 3
Not "Child of No One" But "Somebody's Baby"
ARGUMENT PART ONE: 7
Parentage Issues Arising from Fors of Collaborative Reproduction
Should Be Resolved Under a Child-Centric "Needs-BasedRights" Analysis
A. Parentage Law Must Be Premised Upon the Primac of
the Child's Need for Care Rather Than Adult Entitlements 8
B. Reproductive Method Should Not Determine Parentage 10
C. Parentage Lw Should Enable Children to Form Secure, Dependable
Attachments y Recognizing the Presumptive Parents Before Birth 11
D. Parentage LawMust Enforce Pre-Conception Commitments 14
E. Parentage Law Mut Require That Pre-Conception Assumptions
of Parental Status and Respnsibilities Are Unconditional 15
F. Parentage Law Must Continue to Potect Donors of Genetic Material and
Gestational Surrogates from the isk of Unanticipated Parental
Responsibilities
17
G. The Presumptin of Parentage in Favor of the Intended Parents Should
Not Be
EasilyRebutted and the Issue Must Be Raised Before or At the Time of
Birth 1
PART TWO 18
California Parentage Law in Context: Biologyand Beyond
A. Bastards and the Presumption of Legitimacy 20
B. Paternity Actions: Establishing Support ights for Illegitimate
Children 21
C. Biological Paternity: The Uniform Act on Blood Tests 22
D. Donor Artificial Isemination: The First Form of Collaborative
Reproduction 22
E. Abolishng Illegitimacy: The Uniform Parentage Act 26
F. Newest Statutes: egistering Paternity; Establishing Parentage in
D.V.P.A. Cases
27
G. Parentage by Equitable Estoppel 28
H. Common Policy Threads Aross Diverse Bodies of Parentage Law 28
PART THREE: 31
ApplyingThe Policies Under Existing Law
A. Jaycee's Fundamental Interest i Recognition of Her Parents
Is Protected By the U.S. and California Consitutions 31
B. The Adoption Paradigm Serves No Public Policy Goals
in the Context of Collaborative Reproduction 32
C. John and Luanne Are aycee's Parents Under
California's Common Law Definition of "Parnt" 36
D. Jaycee Is a "Child of the Marriage" of John and Luanne 37
E. Failure to Treat Jaycee Identically to Children of ArtificialInsemination,
Ovum Donation and Gestational Surrogacy Violates Equal Proection 39
F. John Is Equitably Estopped from Denying Parental Responsiblity 43
"Only the Chancellor Can Protect the Innocent and Render Justice
G. Family Code 7614 Provides an Independent Basis for Child Support 47
CONCUSION 48
"How Toys (and Families) Become Real"
TABLE OF AUTHORITIE
CASES
Alexandria S. v. Pacific Fertility Medical Center, Inc. 1997)
55 Cal.App.4th 110, 119, 4 Cal. Rptr.2d 23 27
Alle v. Hance (1911) 161 Cal. 189, 196, 118 P. 527 44
American Academy of Pdiatrics v. Lungren (August 5, 1997)
97 Daily Journal D.A.R. 10141 3
Clevenger v. Clevenger (1961) 189 Cal.App.2d 658, 11 Cal.Rptr. 707 28
46
Comino v. Kelly (1994) 25 Cal.App.4th 678, 30 Cal.Rptr.2d 728 21
County of Orange v. Leslie (1993) 14 Cal.App.4th 976, 17 Cal.Rptr. 748
1 Eisenstadt v. Baird (1972) 405 U.S. 438 36
Estate of Hafer (1986) 184 Cal.App.3d 1371, 1394, 229 Cal.Rptr. 676 45
Gomz v. Perez (1973) 409 U.S. 535, 93 S.Ct. 872 26, 31
Griswold v. Connectiut (1965) 381 U.S. 479 36
Jaycee B. v. Superior Court (1996) 42 Cal.App.th 720 3, 33
Johnson v. Calvert (1993) 5 Cal.4th 84, 94-95,
19 CalRptr.2d 494, 851 P.2d 776 11, 12, 31, 32, 33, 34, 39
In re Marriage o Johnson (1979) 88 Cal.App.3d 848, 152 Cal.Rptr. 121
28, 45
Jhordan C v. Mary K. (1986) 179 Cal.App.3d 386, 224 Cal.Rptr. 530 26
In re K. (Tex. 1976) 535 S.W2d 168 12
Kusior v. Silver (1960) 54 Cal.2d 603, 7 Cal.Rptr.129 20
Lane v. Lane (N.M. App. 1996) 121 N.M. 414, 912 P.2d 290,
cert. deied, 121 N.M. 375, 911 P.2d 883 41
Los Angeles Dep't of Water and Power . Manhart (1978) 435 U.S. 702 40
May v. Anderson (1953) 345 U.S. 528 3
Meyer v. Nebraska (1923) 262 U.S. 390 35
Michael H. v. Gerld D. (1989) 491 U.S. 110 20
Miller v. Albright (1997) 117 S.Ct. 1689 Mem), 137 L.Ed.2d 817 26
Marriage of Moschetta (1994) 25 Cal.App.4th 121, 30 Cal.Rptr.2d 893 17,
32, 34
Nancy S. v. Michele G. (1981) 228 Cal.Ap.3d 831, 279 Cal.Rptr. 212 38
Police Dept. v. Mosely (1972) 408 U.S.92 40
Roe v. Wade (1973) 410 U.S. 113 36
Skinner v. Oklahoma (942) 31 U.S. 535 35
People v. Sorenson (1968) 68 Cal.2d. 280, 284 14 24, 25, 28, 29, 36, 37
United States v. Virginia (1996) 116 S.Ct. 226 40
In re Marriage of Valle (1975) 53 Cal.App.3d 837, 126 Cal.Rptr. 38 28,
46
Weber v. Aetna Casualty & Surety Company (1972) 406 US. 164, 92 S.Ct.
1400 26, 31
Estate of Woodward (1964) 230 Cal.App.2d113, 40 Cal.Rptr. 781 22
STATUTES AND UNIFORM ACTS
California Eidence Code 623 43
California Family Code 7540 20, 38
Califonia Family Code 7550 et. seq. 22
California Family Code 7570-7577 28, 0
California Family Code 7570(a) 30
California Family Code 760(a) 39
California Family Code 7611 26
California Family Cod 7613 5, 27, 39, 40, 41
California Family Code 7614 5, 47, 48
California Family Code 8616 35
California Family Code 8617 35
California Penal Code 270 21, 24, 7
California SB 564 (Ch. 39, Stats. 1997) 28
California Unform Parentage Act, 9B U.L.A. 288-289 19, 20, 26, 27, 29,
31, 32, 38, 41
California Uniform Status of Children of Assisted Conception Act.
9B U.L.A. 195 (Supp. 1997) 27, 41, 42, 43, 50
LAW REVIEWS AND ARTICLES
Elizabeth Bartholet, Beyond Biolog: The Politics of Adoption &
Reproduction (1995) 2 Duke J. Gender L. Pol'y 5 34
John Lawrence Hill, What Does it Mean to Be a "Paren:? The Claims of
Biology as the Basis for Parental Rights (1991) 66 N.Y.U. L.Rev. 353 1, 12
Wolfgang Hirczy, Protecting the Father-Child BondAgainst Non-Paternity
Action: Legislative, Judicial and Constitution
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