Too Many Parents

Biomedical developments have generated countless challenges for the law. While the legal system's response is not always awe-inspiring, its confused and faltering reaction to medically assisted reproduction is in a class by itself. Perhaps this is not surprising, since of late virtually every bizarre possibility hypothesized in the early days of artificial baby-making has materialized, first in the fertility clinics and then in the courthouses.[1] Yet even courts that have responded with some semblance of ad hoc justice have failed to respect the central interests at stake, which are not those of the warring adults but of the children who are and will be produced using the new reproductive methods. Two recent cases from opposite coasts demonstrate the limitations of the contract law model on which the courts have relied with increasing frequency and make dear the need to read present legislation wisely and to craft new legislation that is astute as well as comprehensive. In re Marriage of Buzzanca Orange County, California, which has given rise to the most widely discussed surrogate motherhood cases--occasionally involving facts so weird the cases have gone straight to the talk-show circuit without first being litigated--recently outdid itself. On 10 June 1998, the state's highest court declined to review a Court of Appeal decision reversing a trial court holding that a little girl with eight people who could arguably be called her parents was actually parentless. Behind the birth of that little girl, Jaycee Buzzanca, lies a convoluted tale. About five years ago, Erin Davidson agreed to become an egg donor, on the condition that she and her husband, who have four children, would approve who got her eggs. Once Mr. and Mrs. X (who remain anonymous) passed muster, seventeen eggs harvested from Mrs. Davidson were fertilized with Mr. X's sperm. Four were implanted in Mrs. X, who then gave birth to twins; the remaining embryos were kept in frozen storage. After the twins' birth, the fertility center offered the Xs three choices: destroy the embryos, donate them for research, or donate them for other couples. Mr. and Mrs. X checked off the third option. The Davidsons seem to have been unaware any further donation might occur. Meanwhile, John and Luanne Buzzanca had failed to produce a child with five different surrogate mothers. On 13 August 1994, one of the Xs' frozen embryos was implanted in the uterus of "professional surrogate" Pamela Snell, who had served that role in the birth of three previous babies. Twelve days later, John and Luanne Buzzanca and Pamela and her husband Randy Snell signed a written surrogacy agreement, which--in what proved an understatement--warned that the peculiar circumstances of the case made parenthood legally unpredictable. The delay in formalizing the agreement was eventually found by the appellate court to be without legal significance, but its psychological meaning shortly emerged when John separated from Luanne. Eight months later, just weeks before Jaycee's birth on 26 April 1995, he filed for divorce. In that filing, John alleged the marriage had produced no children, which Luanne denied in her response. Her attempt to get temporary child support was initially rebuffed by the family court because John was not Jaycee's biological father nor was she born to Luanne during the course of the marriage (the two ways the law typically establishes fatherhood). In February 1996, however, an appellate panel ruled that Luanne had made sufficient showing that she would prevail at trial to entitle her to child support pending the litigation. In March 1997 the lower court heard John's petition for divorce as well as a petition Luanne had filed in September 1996 to establish herself as Jaycee's legal mother. Based only on oral arguments, the court ruled that John was not the legal father because he had not contributed the sperm, that Luanne was not the legal mother because she had neither contributed the egg nor borne Jaycee, and that the surrogate was not the legal mother because the parties had so stipulated. …