O.C. Surrogate Support Case Spotlights Need for Law : Father should be held to pact that brought child into world

From President Clinton to the pastor of the neighborhood church, from school principals to social workers, there has been a worthwhile campaign for greater parental responsibility, especially on the part of fathers.

Unfortunately, that movement has run into a brick wall in a surrogate parenting case in Orange County. The legal dilemma again points up the need for the state Legislature to provide remedies in an area where science has outrun the law.

Court papers filed this month disclosed that Superior Court Judge Robert D. Monarch, sitting in Family Court, ruled that a man who backed out of a contract with a surrogate to have a baby need not support the child.

The legal documents said John A. Buzzanca and his then wife, Luanne, hired a surrogate, who used a sperm and egg from anonymous donors to become pregnant. One month before the birth, John Buzzanca filed for divorce. His ex-wife sought child support, which he provided under a court order on a temporary basis.

But Monarch ruled that because under law there was no “child of the marriage,” Buzzanca was off the hook. The judge also ruled that the child, Jaycee, now 2 years old, had no parents as far as the law was concerned.

Fortunately, Luanne Buzzanca has acted as Jaycee’s mother, regardless of her status under law, and has appealed the decision, as have attorneys for Jaycee. The consensus in the legal community appears to be that an appeals court is likely to rule against John Buzzanca and hold him responsible for support of the baby. It is difficult to see how any other verdict would be fair.

The state Supreme Court foresaw the possibility of a Buzzanca-type case in an earlier surrogate parenting quarrel several years ago. At the time it took note of a law review article that said, correctly, that when someone voluntarily becomes a parent, with or without the use of a surrogate, the law requires that person to act as a parent.

But an article in a law review is not, of course, a law. For years California courts have requested assistance from the Legislature in the field of surrogate parenting. Had the Legislature complied, the Buzzanca case might have been avoided. It is ironic that courts, which are sometimes criticized for supposedly making laws rather than interpreting them, have in this instance been ignored by those whose job it is to make laws.

Experts say in most surrogate cases, at least one parent is biologically related to the child, donating either sperm or egg. But the number of cases in which there is no biological relationship by anyone other than the surrogate is increasing.

Operators of surrogate services say couples sometimes shun adoption in favor of hiring a woman to bear a child created from the egg and sperm of a third party because they can be sure of the health of all parties and guard against genetic problems. The proponents of surrogacy also argue that fewer women attempt to retain custody of the child they bore in surrogacy cases than in adoptions.

But one professor of ethics decries “checkbook baby-creation” in surrogacy cases and notes that adoptions usually require psychological testing and other examinations of the prospective parents.

Under California law, a man is considered the father of a child through genetics, or adoption or marriage to the child’s mother when the child is born. None of those conditions applied to Buzzanca.

But ending a marriage and backing out of the original surrogacy contract should not give someone an extra chance to dodge his or her obligations. Signing an agreement to have someone bear a child on your behalf is not the same as signing an installment contract to pay for a television set.

Several years ago the Legislature approved a bill stripping a surrogate mother of all rights to a newborn in favor of the couple intending to raise a child. Gov. Pete Wilson vetoed the bill, saying there were too few disputed cases to require legislation.

But an appeals court in Santa Ana said persuasively a year ago that “once again, the need for legislation in the surrogacy area is apparent.” The court was right. The need still remains.