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California Court of Appeal Decision- Buzzanca
Custody Case
Filed 3/10/98
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re Marriage of
JOHN A. and LUANNE H. BUZZANCA.
JOHN A. BUZZANCA,
Respondent,
v.
LUANNE H. BUZZANCA,
Appellant.
G022147, G022157
(Super. Ct. No. 95D002992)
O P I N I O N
Appeal from a judgment of the Superior Court of
Orange County, Robert D. Monarch, Judge. Reversed
with directions. Van Deusen, Youmans and Walmsley
and Robert R. Walmsley for Appellant. Daniel E.
Lungren, Attorney General, Roderick E. Walston,
Chief Assistant Attorney General, Carol Ann White,
Statewide Child Support Coordinator, Mary A. Roth,
Deputy Attorney General, Taylor Flynn, Mark
Rosenbaum and Leslie Ellen Shear as Amici Curiae on
behalf of Appellant.
Schwamb & Stabile, Thomas P. Stabile and Mark A.
Hewitt for Respondent. Jeffrey W. Doeringer, under
appointment by the Court of Appeal, for Minor.
* * *
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.)
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 -- to both husband and
wife. Just as a husband is deemed to be the lawful
father of a child unrelated tohim 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
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 thelawful mother of
the child and therefore John could not be the lawful
father or owe any support.
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
responsibility for child support." Luanne then filed
a petition for a writ of supersedeas to stay the
judgment; she also filed an appeal from it. This
court then granted a stay which had the effect of
keeping the support order alive for Jaycee. We also
consolidated the writ proceeding with the appeal.
In his respondent's brief in this appeal, John tries
to intimate -- though he stops short of actually
saying it -- that Jaycee was not born as a result of
a surrogacy agreement with his ex-wife. He points to
the fact that the actual written surrogacy agreement
was signed on August 25, 1994, but the implantation
took place a little less than two weeks before, on
August 13, 1994. The brief states: "At the time that
the implantation took place, no surrogacy contract
had been executed by the parties to this action."
Concerned with the implication made in John's
respondent's brief, members of this court questioned
John's attorney at oral argument about it. It turned
out that the intimation in John's brief was a red
herring, based merely on the fact that John did not
sign a written contract until after implantation.
Jaycee was nonetheless born as a result of a
surrogacy agreement on the part of both Luanne and
John; it was just that the agreement was an oral one
prior to implantation. The written surrogacy
agreement, John's attorney acknowledged in open
court, was the written memorialization of that oral
contract.
Members of this panel also pressed John's attorney
to state whatever factually based defenses John
might have offered if the case had actually been
tried. John's attorney had not specifically stated
such defenses at the hearing in March 1996; he had
only vaguely indicated that "the facts as testified
to would be somewhat different than" those which the
trial court had "assumed."
Again, there was less than was intimated. John's
signature on the written surrogacy agreement was not
forged, or anything of the sort. His one trump card,
finessed out only after repeated questioning and the
importuning of one of our panel to articulate his
"best facts," was this: John would offer testimony
to the effect that Luanne told him that she would
assume all responsibility for the care of any child
born. Luanne alone would assume "the burdens of
childrearing."
Therefore, even though there was no actual trial in
front of the trial court on the matter, this
appellate court will assume arguendo that if there
had been a trial the judge would have believed
John's evidence on the point and concluded that
Luanne had indeed promised not to hold John
responsible for the child contemplated by their oral
surrogacy agreement.
DISCUSSION
The Statute Governing Artificial
Insemination Which Makes a Husband the Lawful Father
of a Child Unrelated to Him Applies to Both Intended
Parents In This Case
Perhaps recognizing the inherent lack of appeal for
any result which makes Jaycee a legal orphan, John
now contends that the surrogate is Jaycee's legal
mother; and further, by virtue of that fact, the
surrogate's husband is the legal father. His
reasoning goes like this: Under the Uniform
Parentage Act (the Act), and particularly as set
forth in section 7610 of California's Family Code,
there are only two ways by which a woman can
establish legal motherhood, i.e., giving birth or
contributing genetically. 3 Because the
genetic contributors are not known to the court, the
only candidate left is the surrogate who must
therefore be deemed the lawful mother. And, as
John's counsel commented at oral argument, if the
surrogate and her husband cannot support Jaycee, the
burden should fall on the taxpayers.
The law doesn't say what John says it says. It
doesn't say: "The legal relationship between mother
and child shall be established only by either proof
of her giving birth or by genetics." The statute
says "may," not "shall," and "under this part," not
"by genetics." Here is the complete text of section
7610: "The parent and child relationship may be
established as follows:
(a) Between a child and the natural mother, it may
be established by proof of her having given birth to
the child, or under this part.
(b) Between a child and the natural father, it may
be established under this part.
(c) Between a child and an adoptive parent, it may
be established by proof of adoption."
The statute thus contains no direct reference to
genetics (i.e., blood tests) at all. The Johnson
decision teaches us that genetics is simply subsumed
in the words "under this part." In that case, the
court held that genetic consanguinity was equally
"acceptable" as "proof of maternity" as evidence of
giving birth. (Johnson v. Calvert, supra, 5 Cal.4th
at p. 93.)
It is important to realize, however, that in
construing the words "under this part" to include
genetic testing, the high court in Johnson relied on
several statutes in the Evidence Code (former Evid.
Code, ¤¤ 892, 895, and 895.5) all of which, by their
terms, only applied to paternity. (See
Johnson v. Calvert, supra, 5 Cal.4th at pp. 90-92~)4
It was only by a "parity of reasoning" that our high
court concluded those statutes which, on their face
applied only to men, were also "dispositive of the
question of maternity." (Id. at p. 92.)
The point bears reiterating: It was only by a parity
of reasoning from statutes which, on their face,
referred only to paternity that the court in
Johnson v. Calvert reached the result it did on
the question of maternity. Had the Johnson court
reasoned as John now urges us to reason -- by
narrowly confining the means under the Uniform
Parentage Act by which a woman could establish that
she was the lawful mother of a child to texts which
on their face applied only to motherhood (as
distinct from fatherhood) -- the court would have
reached the opposite result. 5
In addition to blood tests there are several other
ways the Act allows paternity to be established.
Those ways are not necessarily related at all to any
biological tie. Thus, under the Act, paternity may
be established by:
-- marrying, remaining married to, or attempting to
marry the child's mother when she gives birth (see ¤
7611, subds. (a) ~ (b));
-- marrying the child's mother after the child's
birth and either consenting to being named as the
father on the birth certificate (¤ 7611, subd.
(CXl)) or making a written promise to support the
child (see ¤ 7611, subd. (c)(2)).
A man may also be deemed a father under the Act in
the case of artificial insemination of his wife, as
provided by section 7613 of the Family Code.6
To track the words of the statute: "If, under the
supervision of a licensed physician and surgeon and
with the consent of her husband, a wife is
inseminated artificially with semen donated by a man
not her husband, the husband is treated in law as if
he were the natural father of a child thereby
conceived." 7
As noted in Johnson, "courts must construe statutes
in factual settings not contemplated by the enacting
legislature." (Johnson v. Calvert, supra, 5 Cal.4th
at p. 89.) So it is, of course, true that
application of the artificial insemination statute
to a gestational surrogacy case where the genetic
donors are unknown to the court may not have been
contemplated by the legislature. Even so, the two
kinds of artificial reproduction are exactly
analogous in this crucial respect: 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 husband who consents to artificial insemination
under section 7613 is "treated in law" as the father
of the child by virtue of his consent, there is no
reason the result should be any different in the
case of a married couple who consent to in-vitro
fertilization by unknown donors and subsequent
implantation into a woman who is, as a surrogate,
willing to carry the embryo to term for them.
The statute is, after all, the clearest expression
of past legislative intent when the legislature did
contemplate a situation where a person who caused a
child to come into being had no biological
relationship to the child.
Indeed, the establishment of fatherhood and the
consequent duty to support when a husband consents
to the artificial insemination of his wife is one of
the well-established rules in family law. 8
The leading case in the country (so described by a
New York family court in Adoption of Anonymous
(1973) 74 Misc.2d 99, 345 N.Y.S.2d 430, 433) is
People v. Sorensen, supra, 68 Cal.2d 280, in
which our Supreme Court held that a man could even
be criminally liable for failing to pay for the
support of a child born to his wife during the
marriage as a result of artificial insemination
using sperm from an anonymous donor.
In Sorensen, the high court emphasized the
role of the husband in causing the birth, even
though he had no biological connection to the child:
"[A] reasonable man who . . . actively participates
and consents to his wife's artificial insemination
in the hope that a child will be produced whom they
will treat as their own, knows that such behavior
carries with it the legal responsibilities of
fatherhood and criminal responsibility for
nonsupport." (Id. at p. 285, emphasis added.)
The court went on to say that the husband was
"directly responsible" for the "existence" of the
child and repeated the point that "without
defendant's active participation and consent the
child would not have been procreated." (Ibid.)
Sorensen expresses a rule universally in tune
with other jurisdictions."Almost exclusively, courts
which have addressed this issue have assigned
parental responsibility to the husband based on
conduct evidencing his consent to the artificial
insemination." (In re Baby Doe (S.C. 1987)
353 S.E.2d 877, 878; accord: Gursky v. Gursky
(1963) 39 Misc.2d 1083, 242 N.Y.S.2d 406, 411-412
[even though child was not technically "legitimate"
under New York law at the time, husband's conduct in
consenting to the artificial insemination properly
invoked application of the doctrine of equitable
estoppel requiring him to support the child];
Anonymous v. Anonymous (1964) 41 Misc.2d 886,
246 N.Y.S.2d 835, 836-837 [following Gursky];
K.S. v. G.S. (1981) 182 N.J. Super. 102, 440
A.2d 64, 68 [because husband did not offer clear and
convincing evidence that he had withdrawn his
consent to artificial insemination procedure, he was
bound by initial consent given earlier and
accordingly held to be lawful father of the child];
In re Marriage of Adams (Ill.App. 1988) 528
N.E.2d 1075, 1087 [affirming child support award
where trial court had determined there was "actual
consent" to artificial insemination];9
K.B. v. N.B. (Tex.App. 1991) 811 S.W.2d 634, 639
[even though husband did not consent in writing to
insemination procedure, his full knowledge of the
facts and willing participation in the artificial
insemination, involvement in child birth classes,
speaking of the child as "our baby" and passage of
time before repudiation established that he ratified
procedure and was therefore liable for child
support]; Levin v. Levin (Inc. 1994) 645
N.E.2d 601, 605 [consent of husband to wife's
artificial insemination meant obligation to support
because child was a "child of the marriage," the
same as if the child had been adopted during the
marriage].)
One New York family court even went so far as to
hold the lesbian partner of a woman who was
artificially inseminated responsible for the support
of two children where the partner had dressed as a
man and the couple had obtained a marriage license
and a wedding ceremony had been performed prior to
the inseminations. (Karin T. v. Michael T. (1985)
127 Misc.2d 14, 484 N.Y.S.2d 780.)10 Echoing
the themes of causation and estoppel which underlie
the cases, the court noted that the lesbian partner
had "by her course of conduct in this case . . .
brought into the world two innocent children" and
should not "be allowed to benefit" from her acts to
the detriment of the children and public generally.
(484 N.Y.S.2d at p. 784.)11
Indeed, in the one case we are aware of where the
court did not hold that the husband had a support
obligation, the reason was not the absence of a
biological relationship as such, but because of
actual lack of consent to the insemination
procedure. (See In re Marriage of
Witbeck-Wildhagen (Ill.App. 1996) 667 N.E.2d
122, 125-126 [it would be "unjust" to impose support
obligation on husband who never consented to the
artificial insemination].)
It must also be noted that in applying the
artificial insemination statute to a case where a
party has caused a child to be brought into the
world, the statutory policy is really echoing a more
fundamental idea -- a sort of grundnorm to borrow
Hans Kelsen's famous jurisprudential word -- already
established in the case law. That idea is often
summed up in the legal term "estoppel." Estoppel is
an ungainly word from the Middle French (from the
word meaning "bung" or "stopper") expressing the
law's distaste for inconsistent actions and
positions -- like consenting to an act which brings
a child into existence and then turning around and
disclaiming any responsibility.
While the Johnson v. Calvert court was able
to predicate its decision on the Uniform Parentage
Act rather than making up the result out of whole
cloth, it is also true that California courts, prior
to the enactment of the Act, had based certain
decisions establishing paternity merely on the
common law doctrine of estoppel. We have already
discussed one of those decisions, People v.
Sorensen, in detail. There an ax-husband was
held, in light of his role in causing the birth of
the child, to be estopped from disclaiming
responsibility. Common law estoppel was also the
basis for establishing paternity and its concomitant
responsibility as far back as the 1961 decision of
Clevenger v. Clevenger (1961) 189 Cal.App.2d 658,
662 (husband who took illegitimate child into his
home and held child out as his own "estopped" to
assert illegitimacy and "avoid liability for its
support").
There is no need in the present case to predicate
our decision on common law estoppel alone, though
the doctrine certainly applies. The estoppel
concept, after all, is already inherent in the
artificial insemination statute. In essence, Family
Code section 7613 is nothing more than the
codification of the common law rule articulated in
Sorensen: By consenting to a medical procedure which
results in the birth of a child -- which the
Sorensen court has held establishes parenthood
by common law estoppel -- a husband incurs the legal
status and responsibility of fatherhood. (See
Sorensen, supra, 68 Cal.2d at p. 285.)
John argues that the artificial insemination statute
should not be applied because, after all, his wife
did not give birth. But for purposes of the statute
with its core idea of estoppel, the fact that Luanne
did not give birth is irrelevant. The statute
contemplates the establishment of lawful fatherhood
in a situation where an intended father has no
biological relationship to a child who is procreated
as a result of the father's (as well as the
mother's) consent to a medical procedure.
Luanne is the Lawful Mother of
Jaycee, Not the Surrogate, and Not the Unknown Donor
of the Egg
In the present case 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. Her
motherhood may therefore be established "under this
part," by virtue of that consent. In light of our
conclusion, John's argument that the surrogate
should be declared the lawful mother disintegrates.
The case is now postured like the Johnson v. Calvert
case, where motherhood could have been "established"
in either of two women under the Act, and the tie
broken by noting the intent to parent as expressed
in the surrogacy contract. (See Johnson v.
Calvert, supra, 5 Cal.4th at p. 93.) The only
difference is that this case is not even close as
between Luanne and the surrogate. Not only was
Luanne the clearly intended mother, no bona fide
attempt has been made toestablish the surrogate as
the lawful mother.12
We should also add that neither could the woman
whose egg was used in the fertilization or
implantation make any claim to motherhood, even if
she were to come forward at this late date. Again,
as between two women who would both be able to
establish motherhood under the Act, the Johnson
decision would mandate that the tie be broken in
favor of the intended parent, in this case, Luanne.
Our decision in In re Marriage of Moschetta,
supra, 25 Cal.App.4th 1218, relied on by John,
is inapposite and distinguishable. In Moschetta,
this court held that a contract giving rise to a
"traditional" surrogacy arrangement where a
surrogate was simply inseminated with the husband's
sperm could not be enforced against the surrogate by
the intended father. (Id. at p. 1231.) In
order for the surrogate not to be the lawful mother
she would have to give the child up for adoption.
(See id. at pp. 1231, 1233.) In Moschetta,
the surrogate was the mother both by birth and
genes; the woman contemplated as the intended mother
in the surrogacy contract gave up any claim to the
child. (Id. at pp. 1223-1225.) In fact, at
the appellate level, she went so far as to file a
brief in favor of the birth mother's claim. (See
id. at p. 1224.)
Moschetta is inapposite because this court
never had occasion to consider or discuss whether
the original intended mother's participation in the
surrogacy arrangement, which brought about the
child's birth, might have formed the basis for
holding her responsible as a parent. She had given
up her claim; the issue was not before the court.
Unlike the Johnson case there was no tie to break
between two women both of whom could be held to be
mothers under the Act. (See ibid. ["There is
no 'tie' to break."].) When courts do not consider
propositions, their subsequent decisions are not
precedent for them. (E.g., American Federation of
Labor v. Unemployment Ins. Appeals Bd. (1996) 13
Cal.4th 1017, 1039; Roberts v. City of Palmdale
(1993) 5 Cal.4th 363, 372.)
Moschetta is distinguishable because it
involved the claim of woman who both gave birth to
the child, "contributed" the egg, and who wanted the
child enough to go to court to seek custody. (See
Moschetta, supra, 25 Cal.App.4th at p. 1223.)
The only alternative was a woman who did not give
birth, did not contribute genes, and who gave up her
claim. (Id. at pp. 1224 1225.) Only if the surrogacy
contract were specifically enforced in
Moschetta could this court have ruled in favor
of the father's claim to exclusive parenthood.
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. (See id. et pp. 1230,
1235, fn. 23.) By the same token, there is also an
important distinction between enforcing a surrogacy
contract and making a legal determination based on
the fact that the contract itself sets in motion a
medical procedure which results in the birth of a
child.
In the case before us, we are not concerned, as John
would have us believe, with a question of the
enforceability of the oral and written surrogacy
contracts into which he entered with Luanne. This
case is not about "transferring" parenthood pursuant
to those agreements. We are, rather, concerned with
the consequences of those agreements as acts which
caused the birth of a child.
The legal paradigm adopted by the trial court, and
now urged upon us by John, is one where all forms of
artificial reproduction in which intended parents
have no biological relationship with the child
result in legal parentlessness. It means that,
absent adoption, such children will be dependents of
the state. One might describe this paradigm as the
"adoption default" model: The idea is that by not
specifically addressing some permutation of
artificial reproduction, the Legislature has, in
effect, set the default switch on adoption. The
underlying theory seems to be that when intended
parents resort to artificial reproduction without
biological tie the Legislature wanted them to be
screened first through the adoption system. (Thus
John, in his brief, argues that a surrogacy contract
must be "subject to state oversight.")
The "adoption default" model is, however,
inconsistent with both statutory law and the Supreme
Court's Johnson decision. As to the statutory law,
the Legislature has already made it perfectly clear
that public policy (and, we might add, common sense)
favors, whenever possible, the establishment of
legal parenthood with the concomitant
responsibility. Family Code section 7570,
subdivision (a) states that "There is a compelling
state interest in establishing paternity for all
children." The statute then goes on to elaborate why
establishing paternity is a good thing: It means
someone besides the taxpayers will be responsible
for the child: "Establishing paternity is the first
step toward a child support award, which, in turn,
provides children with equal rights and access to
benefits ...." (Ibid.) In light of this strong
public policy, the statutes which follow section
7570, subdivision (a) seek to provide a "simple
system allowing for the establishment of voluntary
paternity." (See Fam. Code, ¤ 7570, subd. (b).)
Section 7570 necessarily expresses a legislative
policy applicable to maternity as well. It would be
lunatic for the Legislature to declare that
establishing paternity is a compelling state
interest yet conclude that establishing maternity is
not. The obvious reason the Legislature did not
include an explicit parallel statement on
"maternity" is that the issue almost never arises
except for extraordinary cases involving artificial
reproduction.
Very plainly, the Legislature has declared its
preference for assigning individual responsibility
for the care and maintenance of children; not
leaving the task to the taxpayers. That is why it
has gone to considerable lengths to insure that
parents will live up to their support obligations.
(Cf. Moss v. Superior Court (Feb. 2,
1998, S057081)____Cal.4th ___,____ [noting
legislative priority put on child support
obligations].) The adoption default theory flies in
the face of that legislative value judgment.
As this court noted in Jaycee B. v. Superior
Court(1996) 42 Cal.App.4th 718, 731, the
Johnson court had occasion, albeit in dicta, to
address "pretty much the exact situation before us."
The language bears quoting again: "In what we must
hope will be the extremely 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, a rule recognizing the
intending parents as the child's legal, natural
parents should best promote certainty and
stability." (Johnson v. Calvert, supra, 5
Cal.4th at pp. 94-95.) This language quite literally
describes precisely the case before us now: Neither
the woman whose ovum was used nor the woman who gave
birth have come forward to assume custody of the
child after birth.
John now argues that the Supreme Court's statement
should be applied only in situations, such as that
in the Johnson case, where the intended
parents have a genetic tie to the child. The context
of the Johnson language, however, reveals a
broader purpose, namely, to emphasize the
intelligence and utility of a rule that looks to
intentions.
The statement, quoted above, is at the bottom of
page 94 and top of page 95 of the opinion.
Contextually, however, it is part of the development
of a series of ideas which begin on page 93. The
Johnson court had just enunciated its conclusion
that in cases of "genetic consanguinity" and "giving
birth" the intended mother is to be held the lawful
mother.13 The court then found "support" for
its conclusions in the writings of several legal
commentators (id. at p. 93), the first of
whom, Professor Hill, had made the point that the
intended parents are the "'first cause, or prime
movers, of the procreative relationship. "' (Id.
at p. 94, quoting Hill, What Does It Mean to Be a
"Parent"? The Claims of Biology as the Basis for
Parental Rights (1991) 66 N.Y.U. L. Rev. 353,
415.) The court then quoted two more law review
articles, both of which emphasized the same theme as
Professor Hill.14
This laid the foundation for the court's next point,
which was that people who "'choose"' to bring a
child into being are likely to have the child's best
interest at heart, 15which the court
immediately juxtaposed against the surrogate's
position which would result in a woman becoming the
legal mother against her expectations. (Johnson
v. Calvert, supra, 5 Cal.4th at p. 94.) Then
came the sentence which we have already quoted
addressing the "extremely rare situation" where --
as is precisely the case before us now -- neither
the woman who has given birth nor the woman who
provided the ovum were "willing to assume custody of
the child after birth" -- and therefore recognizing
intentions as the best rule to promote certainty and
stability for the child. (Id. at pp. 94-9S.)
In context, then, the high court's considered dicta
is directly applicable to the case at hand. The
context was not limited to just Johnson-style
contests between women who gave birth and women who
contributed ova, but to any situation where a child
would not have been born "'but for the efforts of
the intended parents."' (Id. at p. 94, quoting Hill,
op. cit, supra, at p. 415.)
Finally, in addition to its contravention of
statutorily enunciated public policy and the
pronouncement of our high court in Johnson, the
adoption default model ignores the role of our
dependency statutes in protecting children. Parents
are not screened for the procreation of their own
children; they are screened for the adoption of
other people's children. It is the role of the
dependency laws to protect children from neglect and
abuse from their own parents. The adoption default
model is essentially an exercise in circular
reasoning, because it assumes the idea that it seeks
to prove; namely, that a child who is born as the
result of artificial reproduction is somebody else's
child from the beginning.
In the case before us, there is absolutely no
dispute that Luanne caused Jaycee's conception and
birth by initiating the surrogacy arrangement
whereby an embryo was implanted into a woman who
agreed to carry the baby to term on Luanne's behalf.
In applying the artificial insemination statute to a
gestational surrogacy case where the genetic donors
are unknown, there is, as we have indicated above,
no reason to distinguish between husbands and wives.
Both are equally situated from the point of view of
consenting to an act which brings a child into
being.16 Accordingly, Luanne should have been
declared the lawful mother of Jaycee.
John is the Lawful Father of
Jaycee Even If Luanne Did Promise to Assume All
Responsibility for Jaycee's Care
The same reasons which impel us to conclude that
Luanne is Jaycee's lawful mother also require that
John be declared Jaycee's lawful father. Even if the
written surrogacy contract had not yet been signed
at the time of conception and implantation, those
occurrences were nonetheless the direct result of
actions taken pursuant to an oral agreement which
envisioned that the fertilization, implantation and
ensuing pregnancy would go forward. Thus, it is
still accurate to say, as we did the first time this
case came before us, that for all practical purposes
John caused Jaycee's conception every bit as much as
if things had been done the old fashioned way. (Jaycee
B., supra, 42 Cal.App.4th at p. 730.)
When pressed at oral argument to make an offer of
proof as to the "best facts" which John might be
able to show if this case were tried, John's
attorney raised the point that Luanne had
(allegedly, we must add) promised to assume all
responsibility for the child and would not hold him
responsible for the child's upbringing. However,
even if this case were returned for a trial on this
point (we assume that Luanne would dispute the
allegation) it could make no difference as to John's
lawful paternity. It is well established that
parents cannot, by agreement, limit or abrogate a
child's right to support.17
The rule is nicely illustrated by the case of In re
Marriage of Ayo ( 1987) 190 Cal.App.3d 442. There, a
husband adopted his wife's son from a previous
marriage, then the couple were divorced. (Id.
at p. 445.) A year after the dissolution, the son's
natural father (despite the fact he had already been
adopted) started visiting him. (Ibid) In
light of the natural father's renewed interest, and
in settlement of some arrearages in the division of
community property and child support by a lump sum
payment, the parties entered into a written
agreement in which the wife promised, like Luanne
has allegedly promised in this case, to hold the
husband "harmless from any claims of any kind
regarding her minor child." (See id. at pp.
447-448.) The agreement was filed as a written
stipulation with the court and was even signed by
the trial judge after the words, "it is so ordered."
(Id. at p. 448.)
More than five years later the wife reneged on the
agreement and sought to renew the husband's child
support obligation. (Id. at p. 445.) The
appellate court held that the agreement was invalid,
reasoning that the "rights of the contracting
parties under agreements such as this one affecting
children must yield to the welfare of the children."
(Id. at p. 451.)
The rule against enforcing agreements obviating a
parent's child support responsibilities is also
illustrated by Stephen K v. Roni L. (1980)
105 Cal.App.3d 640, a case which is virtually on
point about Luanne's alleged promise. In Stephen
K, a woman was alleged to have falsely told a
man that she was taking birth control pills. In
"reliance" upon that statement the man had sexual
intercourse with her. (Id. at p. 642.) The woman
became pregnant and brought a paternity action.
While the man did not attempt to use the woman's
false statement as grounds to avoid paternity, he
did seek to achieve the same result by
cross-complaining against the woman for damages
based on her fraud.
The trial court dismissed the cross-complaint on
demurrer and the appellate court affirmed. The
cross-complaint was "nothing more than asking the
court to supervise the promises made between two
consenting adults as to the circumstances of their
private sexual conduct." (Id. at pp.
644-645.)
There is no meaningful difference between the rule
articulated in Stephen K. and the situation
here -- indeed, the result applies a fortiori to the
present case: If the man who engaged in an act which
merely opened the possibility of the procreation of
a child was held responsible for the consequences in
Stephen K., how much more so should a man be
held responsible for giving his express consent to a
medical procedure that was intended to result in the
procreation of a child. Thus, it makes no difference
that John's wife Luanne did not become pregnant.
John still engaged in "procreative conduct." In
plainer language, a deliberate procreator is as
responsible as a casual inseminator.18
CONCLUSION
Even though neither Luanne nor John are biologically
related to Jaycee, they are still her lawful parents
given their initiating role as the intended parents
in her conception and birth. And, while the absence
of a biological connection is what makes this case
extraordinary, this court is hardly without
statutory basis and legal precedent in so deciding.
Indeed, in both the most famous child custody case
of all time,19 and in our Supreme Court's
Johnson v.. Calvert decision, the court looked
to intent to parent as the ultimate basis of its
decision.20 Fortunately, as the Johnson
court also noted, intent to parent "'correlate[s]
significantly"' with a child's best interests. (Johnson
v. Calvert, supra, 5 Cal.4th at p. 94, quoting
Schultz, op. cit. supra, at p. 397.) That is
far more than can be said for a model of the law
that renders a child a legal orphan.21
Again we must call on the Legislature to sort out
the parental rights and responsibilities of those
involved in artificial reproduction. No matter what
one thinks of artificial insemination, traditional
and gestational surrogacy (in all its permutations),
and -- as now appears in the not-too-distant future,
cloning and even gene splicing -- courts are still
going to be faced with the problem of determining
lawful parentage. A child cannot be ignored. Even if
all means of artificial reproduction were outlawed
with draconian criminal penalties visited on the
doctors and parties involved, courts will still be
called upon to decide who the lawful parents really
are and who -- other than the taxpayers -- is
obligated to provide maintenance and support for the
child. These cases will not go away.
Courts can continue to make decisions on an ad hoc
basis without necessarily imposing some grand
scheme, looking to the imperfectly designed Uniform
Parentage Act and a growing body of case law for
guidance in the light of applicable family law
principles. Or the Legislature can act to impose a
broader order which, even though it might not be
perfect on a case-by-case basis, would bring some
predictability to those who seek to make use of
artificial reproductive techniques. As jurists, we
recognize the traditional role of the common (i.e.,
judge-formulated) law in applying old legal
principles to new technology. (See, e.g., Hurtado
v. State of California (1884) 110 U.S. 516, 530
["This flexibility and capacity for growth and
adaptation is the peculiar boast and excellence of
the common law."]; Rodriguez v. Bethlehem Steel
Corp. (1974) 12 Cal.3d 382, 394 ["in the common
law system the primary instruments of evolution are
the courts, adjudicating on a regular basis the rich
variety of individual cases brought before them"].)
However, we still believe it is the Legislature,
with its ability to formulate general rules based on
input from all its constituencies, which is the more
desirable forum for lawmaking.
That said, we must now conclude the business at
hand.
(1) The portion of the judgment which declares that
Luanne Buzzanca is not the lawful mother of Jaycee
is reversed. The matter is remanded with directions
to enter a new judgment declaring her the lawful
mother. The trial court shall make all appropriate
orders to ensure that Luanne Buzzanca shall have
legal custody of Jaycee, including entering an order
that Jaycee's birth certificate shall be amended to
reflect Luanne Buzzanca as the mother.
(2) The judgment is reversed to the extent that it
provides that John Buzzanca is not the lawful father
of Jaycee. The matter is remanded with directions to
enter a new judgment declaring him the lawful
father. Consonant with this determination, today's
ruling is without prejudice to John in future
proceedings as regards child custody and visitation
as his relationship with Jaycee may develop.22
The judgement shall also reflect that the birth
certificate shall be amended to reflect John
Buzzanca as the lawful father.
(3) To the degree that the judgment makes no
provision for child support it is reversed. The
matter is remanded to make an appropriate permanent
child support order. Until that time, the temporary
child support order shall remain in effect. (See
Jaycee B. v. Superior Court, supra, 42 Cal .App
.4th at p. 730 . )
Luanne and Jaycee will recover their costs on
appeal.
SILLS, P. J.
WE CONCUR:
WALLIN, J.
CROSBY, J.
FOOTNOTES
1Technically, 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.
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.
3 The Uniform Parentage Act can be found in
volume 9B of Annotated, beginning at page 287.
4 All three of the statutes were designed for
proceedings involving disputed paternity. None
mentioned maternity. Here is the relevant portion of
each statute as it read in 1993 when Johnson was
decided, all emphasis ours:
Evidence Code section 892: "In a civil action in
which paternity is a relevant fact, the court may .
. . order the mother, child and alleged father to
submit to blood tests. If any party refuses to
submit to such tests, the court may resolve the
question of paternity against such party . Any
party's refusal . . . shall be admissible in
evidence in any proceeding to determine paternity."
Evidence Code section 895: "If the court finds that
the conclusions of all the experts . . . are that
the alleged father is not the father of the child,
the question of paternity shall be resolved
accordingly. If the experts disagree . . . or if the
tests show the probability of the alleged father's
paternity, the question . . upon the tests."
. . shall be submitted upon all the evidence,
including evidence based
Evidence Code section 895.5: "(a) There is a
rebuttable presumption, a burden of proof, of
paternity, if the court finds that the paternity
index . . . is 100 or greater."
With the introduction of the Family Code, former
Evidence Code sect)' 895, and 895.5 have become,
respectively, Family Code sections 7551, 7554, and
7555. There is no material change in the language;
the statutes still refer only to paternity.
5 In In re Marriage of Moschetta
(1994) 25 Cal.App.4th 1218, 1224-1226, the court
refused to apply certain presumptions regarding
paternity found in the Act to overcome the claim of
a woman who was both the genetic and birth mother.
Relying on In re Zacharia D. (1993) 6 Cal.4th 435,
we observed that there may be times when the Act
cannot be applied in a gender interchangeable
manner. (See Moschetta, supra, 25 Cal.App.4th
at p. 1225, fn. 8.)
It made sense in Moschetta not to apply the
paternity statutes cited by the to the biologically
unrelated intended mother because those statutes
merely embody presumptions. The statutes were: (1)
the presumption that a child of a wife cohabiting
with her husband at the time of birth is
conclusively presumed to be a child of the marriage
unless the husband is impotent or sterile (see Fam.
Code, ¤ 7540), and (2) the presumption that a man is
the natural father if he receives the child into his
home and openly holds out the child as his own (Fam.
Code, ¤ 7611, subd. (d)). We rejected application of
these presumptions because, even assuming they could
be applied to a woman, they were only presumptions
and, just like a paternity case, could be overcome
by blood tests showing an actual genetic
relationship. (Moschetta, supra, 25
Cal.App.4th at pp. 1225-1226.) Most fundamentally,
as we pointed out on page 1226 of the opinion, the
presumptions were inapposite because they arose out
of the "old law of illegitimacy" and were designed
as evidentiary devices to make a determination of a
child's biological father.
Moschetta thus cannot be read for the
proposition that statutes which are part of the Act
and refer to an individual of one sex can never be
applied to an individual of another. For one reason,
Moschetta never said that. For another, such
a broad proposition would contradict the rationale
used by a higher court in Johnson.
6 California Family Code section 7613 is
California's enact insemination provision of section
5 of the Uniform Parentage Act.
The entire statute reads as follows: "If, under the
supervision of a licensed physician and surgeon and
with the consent of her husband, a wife is
inseminated artificially with semen donated by a man
not her husband, the husband is treated in law as if
he were the natural father of a child thereby
conceived. The husband's consent must be in writing
and signed by him and his wife. The physician and
surgeon shall certify their signatures and the date
of the insemination, and retain the husband's
consent as part of the medical record, where it
shall be kept confidential and in a sealed file.
However, the physician and surgeon's failure to do
so does not affect the father and child
relationship. All papers and records pertaining to
the insemination, whether part of the permanent
record of a court or of a file held by the
supervising physician and surgeon or elsewhere, are
subject to inspection only upon an order of the
court for good cause shown. [11 (b) The donor of
semen provided to a licensed physician and surgeon
for use in artificial insemination of a woman other
than the donor's wife is treated in law as if he
were not the natural father of a child thereby
conceived."
7 California's Family Code section 7613
varies from the promulgated version it omits the
word "married" in subdivision (b) in front of the
word "woman," a textual indication that the
California Legislature contemplated use of
artificial insemination by single women.
8 The cases have been collected in the
Annotation, Rights and From Human Artificial
Insemination (1991) 83 A.L.R.4th 295.
9 Adams was later reversed on the procedural
ground that Florida law, not Illinois law, governed
the dispute and the case was remanded to the trial
court for further proceedings in light of that. (See
In re Marriage of Adams (III. 1990) 551
N.E.2d 635.)
10 Michael T.'s name was originally Marlene.
(Karin T., supra, 484 N.Y.S.2d at p. 781.)
11 In Karin T. v. Michael T., the court held
in a case involving child support that the lesbian
partner was "indeed a 'parent' to whom such
responsibility attaches." (484 N.Y.S.2d at p. 784.)
By contrast, Nancy S. v. Michele G. (1991)
228 Cal.App.3d 831 held that the lesbian partner of
a woman who gave birth to two children through
artificial insemination was not a parent for
purposes of custody and visitation, even though the
partner alleged that she "helped facilitate the
conception and birth of both children." (Id
at p. 836.) The parties presented no issue of
support obligation in Nancy S., so while the court
acknowledged the doctrine of estoppel in that
context, it declined to extend the estoppel doctrine
"for the purpose of awarding custody and visitation
to a nonparent." (Id at p. 839.)
Likewise, in West v. Superior Court (1997) 59
Cal.App.4th 302, the court held that a former
lesbian partner did not even have standing to obtain
visitation rights. As in Nancy S. there was
no issue of child support based on the partner's
role in the conception and birth.
In the present case we are dealing with a man and
woman who were married at the time of conception and
signing of the surrogacy agreement, and we are
reasoning from a statute, section 7613, which
contemplates parenthood on the part of a married man
without biological connection to the child born by
his wife. Whether section 7613 might be applied by a
parity of reasoning, as we do today to a married
couple, to a nonmarried couple is not before us and
we will not speculate as to the answer. It is enough
to say that because the Nancy S. and West
cases did not involve the issue of support and did
involve nonmarried couples at the time of the
artificial insemination, they are distinguishable.
12 As noted in footnote 2 above, John's
attorney did nothing to object when the trial court
accepted a stipulation taking the surrogate and her
husband out of this case. Accordingly, nothing in
this opinion is intended to address the question of
who might be responsible for a child when only the
surrogate mother is available.
13 This rule, incidentally, has the salutary
effect of working both ways. Thus if an intended
mother who could carry a baby to term but had no
suitable eggs was implanted with an embryo in which
the egg was from a donor who did not intend to
parent the child, the law would still reflect the
intentions of the parties rather than some arbitrary
or imposed preference.
14 The Johnson court quoted Professor
Schulz to the effect that "'intentions that are
voluntarily chosen, deliberate, express and
bargained-for ought presumptively to determine legal
parenthood"' (Johnson v. Calvert, supra, 5
Cal.4th at p. 94, quoting Schultz, Reproductive
Technology and Intent-Based Parenthood: An
Opportunity for Gender Neutrality (1990) Wis.
L.Rev. 297, 323) and a Yale Law Journal Note that
the "'[m]ental concept of the child is a controlling
factor of its creation"' (Johnson v. Calvert,
supra, 5 Cal.4th at p. 94, quoting Note,
Redefining Mother: A Legal Matrix for
New Reproductive Technologies (1986) 96 Yale L.l.
187, 196 (our emphasis).)
15 See Johnson v. Calvert, supra, 5 Cal.4th
at page 94, quoting Schulz, op. cit. supra, at page
397.
16 Apropos our discussion in footnote 5
above, it may be -- though the question does not
need to be decided now -- that some of the other
ways by which paternity may be shown under the Act
in addition to genetics are not "interchangeable"
between the sexes. (See Moschetta, supra, 25
Cal.App.4th at p. 1225.) The artificial insemination
statute, however, most certainly is. Unlike
presumptions used to establish paternity which have
their root in the "old law of illegitimacy" (see
id., at p. 1226), the artificial insemination
statute bears directly on a medical procedure which
contemplates parenthood apart from any biological
tie with the father.
17 The legal consequences of John's
allegation that Luanne would assume sole
responsibility were briefed. Minor's appointed
counsel specifically anticipated the point on page
11, footnote 11 of the minor's opening brief. Rather
than attempt to show that Luanne's alleged promise
would make a difference, John's respondent's brief
merely alludes to a vague need to consider "[a]ll of
the aspects of contract formation . . . including,
but not limited to, the issues of mistake of law or
fact, fraud, coercion and duress" and claims that
John had been precluded from presenting evidence on
these issues by the "preemptive ruling of the trial
court." Three times now -- when this case was here
before (Jaycee B. v. Superior court, supra, 42
Cal.App.4th 718), at the trial, and in his
respondent's brief - John has had the opportunity to
present offers of proof of facts to the court which
would change the result which would otherwise flow
from his oral and written consent to the surrogacy.
Having chosen not to respond to a point made by
minor's counsel in her opening brief, John cannot
now be heard to complain that he didn't have the
opportunity to brief it. Then again, to be fair,
John's attorney may himself have recognized that
Luanne's alleged promise was of no consequence and
it would be almost frivolous to press the issue at
the appellate level. Every family law attorney knows
that courts will not enforce promises by one parent
to hold the other parent harmless from any claims of
child support.
18 This specific point was urged by attorney
Shear, counsel for amicus curiae Association of
Certified Family Law Specialists, at oral argument.
The phrase "casual inseminator" was coined by
Justice Mosk in his concurring opinion in Michael
U v. Jamie B. (1985) 39 Cal.3d 787, 797.
19 See I Kings 3: 25-26 (dispute over
identity of live child by two single women each of
whom had recently delivered a child but one child
had died, resolved by novel evidentiary device
designed to ferret out intent to parent).
20 While in each case intent to parent was
used as a tie-breaker as between two claimants who
either had or claimed a biological connection, it is
still undeniable that, when push came to shove, the
court employed a legal idea that was unrelated to
any necessary biological connection.
21 It is significant that even if the Johnson
majority had adopted the position of Justice Kennard
advocating best interest as the more flexible and
better rule (see id at p. 118 (dis. opn. Of Kennud,
J.)) there is no way the trial court's decision
could stand. Luanne has cued for Jaycee since
infancy; she is the only parent Jaycee has ever
known. It would be unthinkable, given the facts of
this case and her role as care-giver for Jaycee, for
Luanne not to be declared the lawful mother under a
best interest test.
As for the father, John would not be the first man
whose responsibility was based on having played a
role in causing a child's procreation, regardless of
whether he really wanted to assume it.
22 Luanne has had actual physical custody of
Jaycee from the beginning. Obviously, it would be
frivolous of John to seek custody of Jaycee right
now in light of that fact. However, as the lawful
father he certainly must be held to have the right,
consistent with Jaycee's best interest, to
visitation. Our decision today leaves Luanne and
John in the same position as any other divorced
couple with a child who has been exclusively cared
for by the mother since infancy.
And while it may be true that John's consent to the
fertilization, implantation pregnancy was done as an
accommodation to allow Luanne to surmount a
formality, who knows what relationship he may
develop with Jaycee in the future? Human
relationships are not static; things done merely to
help one individual overcome a perceived legal
obstacle sometimes become much more meaningful.
(See, e.g., Nicholson, Shadowlands (1990) (play
based on true story of prominent British author who
married American citizen in Britain in perfunctory
civil ceremony to allow her to remain in country; a
deeper relationship then developed).)
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