SURROGACY AND MOTHERHOOD: Legal Parent of Child Born By A Surrogate by Adeyemi Oshunrinade


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One of the questions the law has been asked to answer is, who is the legal parent of a child born via artificial insemination when both parents have a contract to have an embryo, genetically unrelated to them implanted in a surrogate mom, who under the surrogate agreement entered into, carried and gave birth to a child.

For clarity, artificial insemination is a process where a sperm is artificially inseminated in the ovum to create an embryo, for procreation. Artificial insemination may be of two kinds; (1) it can be homologous, that is with the husband’s semen or; (2) without the husband’s sperm known as heterologous artificial insemination.

Normally, by consenting to a procedure whereby an embryo, which consisted of an egg and sperm which came from unidentified persons, and implanted in a surrogate, common law estoppel precluded the intending parents from avoiding financial and other forms of responsibility for support of the child. Also, the fact that the intending parents have no biological connection to the child does not result in legal parentless.

One who consented to a surrogate contract via artificial insemination, with the intent to be a parent, will not be allowed by law to later come and deny responsibility for the child. The denial by law is based on the principle that, to deny responsibility for the child is against public policy which favors, wherever possible, the establishment of legal parenthood with concomitant responsibility.

Under most artificial insemination statutes, a husband is the lawful father of a child even though; the child is genetically unrelated to him as long as there is the established intent to be a parent when the contract is concluded. Likewise, a wife is the lawful mother of a child even though; the child is not genetically hers as long as the required intent to be a mother is established.

The same law applies to both intended parents in unison, as long as both contracted with the surrogate and agreed to all implantation procedures concerning the embryo. Surrogacy takes many forms, both husband and wife can be genetically related to the child, or there may be no connection whatsoever. It is also possible one of the parents either husband or wife is genetically related to the child. Whatever the case, there are instances where the law must step in to determine who is the legal parent or parents of the child born by a surrogate.

One of such a case is Buzzanca v. Buzzanca, 72 Cal. Rptr. 2d 280 (1998), involving the issue of who is the legal parent of Jaycee born by a surrogate to parents who are not genetically related to the child. Jaycee was born as a result of an agreement between Luanne and John Buzzanca to have an embryo implanted in a surrogate who could carry and give birth to the child for them.

After the fertilization, implantation and pregnancy, Luanne and John decided to end their relationship and the question of who are the legal parents of Jaycee, was brought before the trial court. Luanne claimed that she and John were the lawful parents of Jaycee but John disclaimed all responsibility both financial and otherwise. The surrogate-mom who carried Jaycee in her womb and gave birth to the child, also made it clear she does not want any claim to the child.

After all hearings, the trial court came to the conclusion that Jaycee had no lawful parents. According to the court, the reason for such conclusion was: first, the surrogate who gave birth to Jaycee was not the mother; second, Luanne was not the mother, she could not be the mother because she had no genetic relation to the child; she had neither contributed the egg nor give birth; finally, John could not be the father because he did not contribute the sperm and have no biological connection with the child.

The trial court conclusion was appealed to the Supreme Court, the court disagreed with the trial court’s ruling; on the premise that Jaycee would not have been born had John and Luanne not agree to have a fertilized egg implanted in a surrogate. The District Court concluded that the trial court judge erred because he assumed that legal motherhood under the relevant California statute could only be established in one of two ways (1) by giving birth or (2) by contributing an egg. See Buzzanca v. Buzzanca, supra.

According to the Court of Appeals, the trial court failed to consider the established and well-settled principle of law holding that there are times when fatherhood can be established by conduct apart from giving birth or being genetically related to the child. The court gave the example of when an infertile husband consents to having his wife artificially inseminated, in such a situation, the husband is the “lawful father because he consented to procreation of the child.” See People v. Sorenson, 68 Cal. 2d 280 (1968).

The reasoning of the court was based on the principle that, the same rule which makes a husband the lawful father of a child unrelated to him, but born when he agreed to have his wife artificially inseminated, should apply making a husband and wife to be deemed lawful parents of a child born after a surrogate, bears a biologically unrelated child on their behalf. In each case, a child is born because the medical procedure of artificial insemination was initiated and consented to by intended parents.

John claimed that Jaycee was not born as a result of surrogacy agreement between him and his ex-wife. He stated 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. He claimed no surrogacy agreement had been executed at the time the implantation took place. The court found such argument to be based on the fact that John did not sign a written contract until after implantation; however, Jaycee was born as a result of a surrogacy agreement between John and Luanne, it was just that the agreement was oral prior to implantation.

The court found that John’s signature on the surrogacy agreement was not forged but John would later claim that Luanne told him that she would assume all responsibility for the care of any child born. The court made it clear, the law does not say the legal relationship between mother and child shall be established only by either proof of giving birth, or by genetics; what the California statute in question says is that “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 giving birth to the child, or under part (b) between a child and the natural father, it may be established under part (c) Between a child and his adoptive parents by proof of adoption. See Uniform Parentage Act as set forth in § 7610 of California Family Code.

There are other ways the law allows paternity to be established which are unrelated to blood ties or genetics. Under the Act, paternity may be established by marrying or remaining married to the child’s mother when she gives birth. See (In re Marriage of Moschetta); or marrying the child’s mother after the child’s birth or by consenting to being named the father on the birth certificate.

A man may also be named the father of a child under the Act, “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.” See § 7613 of California Family Code.

The court came to the conclusion that since Luanne agreed to the procedure which results in a pregnancy and eventual birth of Jaycee, Luanne is the legal mother of Jaycee in contradiction to John’s argument that the surrogate be declared the legal mother of Jaycee. The court further reiterates that even the woman whose egg was used in the fertilization, could not lay any claim to motherhood.

On the issue of fatherhood and John’s denial of responsibility as the father of Jaycee, the court came to the conclusion that, just as Luanne is the mother of Jaycee, John is also the lawful father of Jaycee and must assume parental responsibility for the child. Even though, the written surrogacy agreement had not yet been signed at the time of conception and implantation, those occurrences were as a result of oral agreement between Luanne and John, which envisioned that the procedures leading to a pregnancy would go forward.

Therefore, John caused Jaycee’s conception and should assume all responsibility of a father. The trial court’s decision that Luanne is not the lawful mother is reversed; the same court’s decision that John is not the lawful father of Jaycee is reversed. Since Luanne has had actual physical custody of Jaycee from the beginning, she must continue to do so and consistent with Jaycee’s interest, John gets visitation rights and must pay appropriate child support.

Dr. Adeyemi Oshunrinade [E. JD] is a writer and published author; an expert in general law, foreign relations, and the United Nations.

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