THE BABY WAS BORN ON APRIL 26, 1995, at 5:10 a.m. after an easy, five-hour labor in a San Francisco hospital. She was bald, had a round face and a robust pair of lungs. Around noon that day, Pamela Snell, the woman who had carried and delivered the baby, handed the infant over to Luanne Buzzanca, who was waiting at her bedside. Her job as a surrogate complete, Snell, then 37, checked out of the hospital and drove home with her husband and two children. Back at the hospital, Luanne Buzzanca, 42, cuddled the newborn child she named Jaycee and wept joyfully. She and her husband, John, had endured six years of infertility treatment and five other attempts with surrogates. None of that mattered now. "It was the greatest moment in my life," she said.
The sweet moment might have gone blissfully unnoticed, except that this birth has turned into one of the strangest legal and ethical battles even the wild world of reproductive medicine has ever seen. Barely two years after Jaycee was born, a California judge declared that, in the eyes of the law, she effectively had no parents. How could that be? It started when John filed for divorce a month before Jaycee was born. When Luanne sought child-support payments, John asserted he wasn't the baby's father "in any legal sense"--even though he had signed a contract. Superior Court Judge Robert Monarch agreed. After all, he said, Jaycee was conceived in a petri dish, the product of egg and sperm donors, both anonymous. She was carried and delivered by a surrogate with no genetic ties to any of the parties. Monarch not only said John wasn't the legal father but ruled that Luanne wasn't "entitled" to be declared the legal mother either.
The ruling allowed Jaycee to remain with Luanne, even as it shocked family-law specialists around the country. This week a three-judge panel hears arguments on an appeal brought by Jaycee's lawyers. To experts in reproductive law, the case is about more than a surrogate arrangement that went awry. It is, they say, a textbook example of how advances in reproductive science--from frozen eggs to maybe even cloning--continue to race ahead of the law, leaving complex ethical and legal questions unanswered: What constitutes a parent? Is surrogacy or the hot market for donated eggs and sperm tantamount to baby-selling? The resulting lawsuits require judges to make weighty decisions in situations where the law is ambiguous at best. "You have a very bad situation when you have children being made without rules via techniques that never existed before," says Arthur Caplan, a University of Pennsylvania medical ethicist.
Many of the issues were first raised in surrogacy cases, where genetic and "gestational" parents have sometimes clashed over their competing rights to a child. Ten years ago the country was gripped by the saga of Mary Beth Whitehead, the surrogate mother who refused to give up "Baby M." The New Jersey Supreme Court ruled surrogacy contracts aren't enforceable and that Whitehead, as the genetic mother, has as much right to the baby as William Stern, the father who contributed his sperm. (The courts ultimately awarded custody to the more affluent Stern family.) Since Whitehead, the permutations in reproductive science have multiplied, and the Buzzanca case adds yet another twist. None of the parties had any genetic ties to the baby--except the anonymous donors.
The story of John and Luanne Buzzanca also shows the legal and moral morass that can result when human frailties meet reproductive science. When they got married, the couple tried to have a baby the old-fashioned way, but with no success. According to Luanne, a fertility specialist told John, then a boat repairman, that he had a low sperm count and that she had endometriosis. Tapping Luanne's $200,000 inheritance, they ran through the smorgasbord of techniques for childless couples. They tried artificial insemination and in vitro fertilization four times, at a cost of $10,000 each. "What's weird about fertility," Luanne says, "is that you slowly give up your dreams, one by one."
The last dream she relinquished was bearing a child herself. One obvious choice was adoption, but that seemed problem-strewn to them: one potential birthmother confessed to taking cocaine. Doctors suggested they try a surrogate. They considered a traditional surrogacy, in which donated sperm would be mixed with the surrogate's eggs, but, remembering the Whitehead case, thought it would be legally prudent if the surrogate were unrelated to the child. In the summer of 1994 Luanne met Pamela Snell, a mother of two who had just delivered her third surrogacy baby. Snell was thinking about retiring from the practice, but Luanne "begged and begged" her to bear her a child. "I felt so sorry for them," Snell told NEWSWEEK, so she became a surrogate again, for about $10,000.
On Aug. 13, 1994, at the University of California, Irvine, an embryo from anonymous egg and sperm was implanted into Snell's uterus. John and Luanne, and Pam and Randy Snell, signed a contract that acknowledged the uncertainty surrounding surrogacy, including a warning that the use of third-party donors has "no predictable outcomes." That was only too prophetic when the Buzzanca marriage broke up.
Two weeks after the contract was signed, John moved out of the house, according to John Stabile, his attorney. (Buzzanca wouldn't comment.) John never wanted to be a father, Stabile says, and went along with Luanne's idea to use a surrogate because she was desperate for a child. He argues he can't be ordered to support a child who had not been declared legally his. Luanne remembers that John "didn't like spending all that money," but she says he wanted a baby as badly as she did.
The legal battle began when Jaycee was 6 months old and Luanne filed for child support from John. If Monarch's decision leaving Jaycee parentless sounds heartless, the judge was only following California law defining "fatherhood." John wasn't the genetic father; he wasn't the adoptive father; he wasn't married to the mother at the time the child was born, and he wasn't providing for the child in some way. And Luanne, Monarch said, didn't fit the established "mother" definitions--she was neither the gestational nor genetic mother.
Luanne could end the legal mess by adopting Jaycee. But she refuses, insisting the contract is valid. So that leaves it to the appeals courts. In a preliminary ruling last year the court of appeal hinted that John and Luanne should be considered Jaycee's parents. The court suggested that by signing the surrogacy contract, John was responsible for Jaycee's conception "every bit as much as if he had caused her birth the old-fashioned way." There's an old saying that you don't get to pick your parents. For Jaycee, that's never been truer.
BABY MAKING
John Buzzanca - Luanne Buzzanca After many tries at having a child, the Buzzancas pay to have one made for them.
Conception occurs in a petri dish, using the sperm and egg of anonymous donors.
Gestation A surrogate named Pamela Snell is hired by the couple to carry the baby.
Birth Jaycee is born on April 26, 1995. But whose child is she?
LARRY REIBSTEIN AND ANA FIGUEROA