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Ruling Stands on Parents of Child Born to Surrogate

June 11, 1998|MAURA DOLAN | TIMES LEGAL AFFAIRS WRITER

SAN FRANCISCO — The California Supreme Court decided Wednesday to let stand a ruling that made an Orange County couple the legal parents of a girl born to a surrogate mother from a donated embryo.

A lower court had ruled that John A. Buzzanca of Costa Mesa and his former wife, Luanne, were the legal parents of the baby girl although neither of them had a genetic relationship with her. The girl was born after the Buzzancas began divorce proceedings, and John Buzzanca had unsuccessfully sought a court ruling that he does not have responsibility for the child.

The court's decision not to review the case, announced without comment after a closed session, does not make the lower court's decision binding statewide, but it remains a precedent that other courts may refer to.

Some legal experts have said the lower court's ruling strengthens the rights of parents who use surrogate mothers. The decision also puts couples on notice that they will be responsible for children in surrogacy cases, regardless of whose genes the child carries.

Once someone has hired a surrogate to bear a child, "you are going to be responsible for that child, notwithstanding any complication that develops down the road, whether it is a medical complication or a legal complication," said Robert Walmsley, the lawyer who represented Luanne Buzzanca.

John Buzzanca, a paralegal, and Luanne, a dog trainer, hired a surrogate after they were unable to conceive a child. An embryo donated by an anonymous couple was used.

Shortly before the child was born, the couple split up. John Buzzanca later insisted he was not the girl's father, and a trial court in Orange County agreed with him.

That court also held that Luanne Buzzanca, who has cared for the girl since her birth more than three years ago, was "not entitled to be declared the legal mother . . . at this time."

She appealed, and a Court of Appeal in Santa Ana overturned the decision. The appellate panel cited a law that makes a husband who consents to his wife's artificial insemination responsible for the child.

"The fact that Luanne did not give birth is irrelevant," wrote Court of Appeal Justice David G. Sills. "Luanne is situated like a husband in an artificial insemination case whose consent triggers a medical procedure which results in a pregnancy and eventual birth of a child."

Intent to become parents is more important than a biological relationship, the appeals' court said.

Walmsley said Luanne will be "ecstatic" to learn that she is finally the legal mother of her little girl. "This has been a long time in coming for her," Walmsley said.

During the years of litigation over parenthood, the surrogate mother also asked for custody of the girl. She contended she had agreed to deliver a child for a happily married couple, not the warring Buzzancas.

John Buzzanca agreed that she should have the girl, but the surrogate eventually dropped her claim. Walmsley said he is uncertain how the courts might have ruled if she had continued to press for parenthood.

Jeffrey W. Doeringer, who represented the child, praised the California Supreme Court for upholding a decision "that creates and establishes parenthood for my client."

"I am sure," he said, "that she would be very pleased if she were old enough to understand this." He said Luanne Buzzanca and the child have a "very loving relationship."

John Buzzanca has seen the little girl only once "for about five or 10 seconds," Doeringer said.

He has been paying about $380 a month in child support and will have to continue to make such payments until the girl is 18, Doeringer said. A trial court will now have to determine whether he should pay more.

Marjorie Fuller, a lawyer for John Buzzanca, said she was disappointed the court had not agreed to review the case. She said she could not comment further until she had read the court's order and informed Buzzanca about it.

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