California Appellate Court Holds Divorcing Spouses Who Were Intended Parents
of Child Resulting from Anonymous Egg and Sperm Donors
and Brought to Term by Surrogate to Be Legal Parents of Child

By Elaine A. Lisko, Health Law & Policy Institute

On March 10, 1998, in Buzzanca v. Buzzanca, 72 Cal. Rptr.2d 280 (Cal. Ct. App. 1998), the California Court of Appeals for the Fourth District, Division 3, held that the intended parents of a child conceived from the egg and sperm of anonymous donors and carried to term by a surrogate are, in law, the natural parents of the child. As a result, the intended father is obligated to support the child even though he files for divorce before the child is born.

The Buzzancas agreed to have an embryo genetically unrelated to either of them implanted in a surrogate who would carry and give birth to the resulting child for them. The agreement was oral until approximately two weeks after implantation at which time a written agreement was signed. Subsequent to fertilization, implantation and pregnancy but before birth, Mr. Buzzanca filed for divorce. He claimed that there were no children born to the marriage and that he was not responsible for the child born to the surrogate, financially or otherwise. Conversely, Mrs. Buzzanca claimed that she and her husband were the lawful parents of the resulting child. Neither the surrogate nor her husband made any claim to the child. The issue before the trial court was who are the lawful parents of the child. The court concluded that the child had no lawful parents based on three findings: (1) the surrogate and her husband stipulated that they were not the biological parents; (2) Mrs. Buzzanca could not be the child’s mother because she had neither contributed the egg nor given birth; and (3) Mr. Buzzanca could not be the child’s father because he had not contributed the sperm and, therefore, had no biological relationship with the child. Mrs. Buzzanca appealed. The appellate court reversed, holding that the intended parents, the Buzzancas, were the child’s lawful parents.

The appellate court found that the same rule that makes a husband the lawful father of a child born as the result of artificial insemination under the Uniform Parentage Act as enacted in the California Family Code made Mr. Bazzanca the lawful father of the surrogate’s child. According to the court, in both instances, the intended parents initiate and consent to a medical procedure that results in the birth of a child. As a result, they are estopped from denying their parental obligation to the child. The only difference is that, under the facts of the Buzzancacase, there was no reason to distinguish between the husband and the wife. The appellate court criticized the trial court’s finding of legal parentlessness of the child as against public policy. The appellate court ruled that a genetic tie to the child is not determinative; rather, the intention of the parties is controlling.

The Buzzanca decision illustrates the difficulty in defining the parent-child relationship when alternative reproductive technology services are utilized. It also raises the issue of whether more specific regulation is necessary or advisable. California, like a majority of the states, has no statute specifically authorizing or prohibiting surrogacy arrangements or outlining the parties’ rights and responsibilities vis-à-vis the child. Even were it to have such a statute, however, if other states’ laws are any indication, it is unlikely that the statute would contemplate the relatively unusual circumstances of the Buzzanca case.

Of the states that have statutes, the majority prohibits surrogacy arrangements or makes them void and unenforceable. These states include Arizona, Indiana, Kentucky, Louisiana, Michigan, Nebraska, New York, North Dakota, Utah and Washington. The District of Columbia also has a statute prohibiting surrogacy arrangements. Some of the states that ban surrogacy arrangements ban them under all circumstances (e.g. Arizona), while others (e.g. Washington) ban them only where compensation is involved. Meanwhile, states like Iowa and West Virginia exempt surrogacy arrangements from laws that prohibit the sale of children and, therefore, implicitly allow such arrangements. A handful of states, Florida, Nevada, New Hampshire and Virginia, have statutes that specifically allow surrogacy arrangements and then only after certain conditions are met.

Almost none of the states that address the parties’ rights and responsibilities vis-à-vis the child treat the circumstance at issue in the Buzzanca case, namely, who the parents of a genetically unrelated child born to a surrogate are. A comparison of some of the statutory regulations demonstrates the vastly different results that might be achieved if the Buzzanca child had been born in a state other than California:
Surrogacy Prohibition
Arizona Ariz. Rev. Stat. Ann. § 25-218
Surrogate is legal mother of child and entitled to custody. Surrogate’s husband is presumed to be the legal father, but this presumption is rebuttable.
Florida Fla. Stat. Ann. 

§ 742.15

Under terms of agreement, commissioning couple must agree to accept custody and to assume full parental rights and responsibilities for child upon birth; unless it is determined that neither member of commissioning couple is genetic parent of child, then surrogate assumes all parental rights and responsibilities for child.
Michigan Mich. Comp. Laws Ann. § 722.861
Legal custody is to be determined based upon best interests of child.
Nebraska Neb. Rev. Stat. 

§ 25-21,200

Biological father of child shall have all rights and responsibilities imposed by law to such child.
Nevada Nev. Rev. Stat. Ann. § 126.045
Terms of agreement must specify: (a) parentage; (b) custody in the event of changed circumstances; and (c) respective rights and responsibilities of contracting parties. Person identified as intended parent will be treated in law as natural parent under all circumstances.
New Hampshire N.H. Rev. Stat. Ann. § 168-B:25
Terms of agreement must provide that: (a) surrogate consents to surrender custody of child or accept obligation of parenthood if she gives notice of intent to keep child; (b) surrogate's husband consents to surrender custody of child or accept obligation of parenthood if surrogate gives notice of intent to keep child; and (c) intended parents consent to accept obligations of parenthood unless surrogate gives notice of intent to keep the child.
North Dakota N.D. Cent. Code 

§ 14-18-05

Surrogate is mother of child. If a party to the agreement, surrogate’s husband is father of child. If husband is not a party to the agreement or surrogate is unmarried, then paternity is determined by Uniform Parentage Act as enacted in North Dakota.
Utah Utah Code Ann. 

§ 76-7-204

Surrogate is mother of child and surrogate’s husband is father of child for all legal purposes, but where custody issue arises court shall make decision based solely on best interest of child.
Virginia Va. Code Ann. 

§ 20-158

In general, surrogate is mother of child and surrogate’s husband is father of child. Donor is not parent of child unless donor is surrogate’s husband. However, where there is a court approved surrogacy agreement, intended parents are parents of child but they may only obtain parental rights through adoption proceeding. Where there is a surrogacy agreement but it is not court approved, surrogate is mother of child unless intended mother is genetic parent, then intended mother is mother of child; intended father is father of child unless neither of intended parents is genetic parent of child in which case surrogate is mother and surrogate’s husband is father of child (assuming he is party to agreement) and intended parents may only obtain parental rights through adoption proceeding.

In short, given the facts of the Buzzanca case, these nine states’ specific statutory provisions would result in at least four potentially different outcomes:

Arguably then, more regulation may not be the answer. As the Buzzanca case makes clear, it is difficult to anticipate and address every possible alternative reproduction fact scenario. Consequently, the decision may be better left to the courts, which, like the appellate court in Buzzanca, can ensure that the public policy in favor of finding someone parentally responsible for a child is upheld while avoiding absurd or wholly unintended results.