Most likely I am baffled because I know next to nothing about surrogacy law, except that a quick search tells me that some courts in other states have gone completely the other way, deciding such cases under contract law (although in the cases I've seen both sperm and egg came from the intended parents, and the egg did not come from the surrogate as in this case).
Here's what I'm talking about:
A husband and wife from Oviedo have lost their legal battle to take custody of the baby girl they had hired a surrogate mother to bear.Estoppel! Estoppel! Estoppel!
A Jacksonville judge ruled Wednesday that Tom and Gwyn Lamitina are not the legal parents of the child, Emma, now 5 months old. The decision leaves the infant with her mother, Jacksonville teacher Stephanie Eckard... "They are obviously devastated," said the attorney for the couple, Scott Salomon of Coral Springs. He said they would appeal."The ultimate victim in this case -- the person that is suffering the most -- is the child," he said, "because at least on a temporary basis, this child is going to grow up, for the time being, without the love of a father."..The baby was born May 9, unbeknownst to the Lamitinas, and went home with Eckard. Two weeks later, she sued Tom Lamitina, demanding custody and child support.
Can somebody help me out in understanding this?
Circuit Judge W. Gregg McCaulie ruled that under Florida law, Tom Lamitina is not the child's father -- merely a sperm donor.So this child simply has no father? No biological father? No legal father? Simply no father? Is Judge McCaulie creating the legal fiction of Florida's very own immaculate conception?
Lamitina has no parental rights, the judge wrote, and therefore is not required to pay child support.
The issue before the judge was whether the two sides had a binding contract that required Eckard to surrender the child to the Lamitinas.Note the bolded portion. With respect, that was not the only issue before the court, certainly not in light of the ruling. If ultimate custody is decided based on contractual matters, then I wouldn't question the judge, especially since I've not been involved in surrogacy law. But to further rule that the child simply has no father at all is another thing. That is not, I suggest, a contractual issue.
Eckard drafted one, based on language she found on the Internet, but Tom Lamitina did not sign it until after she was pregnant, both sides agree. Soon thereafter, both sides began accusing the other of violating it.
The judge concluded that Tom Lamitina sent Eckard an e-mail in November saying he did not want the baby, and on another occasion told her attorney the same thing.
If that didn't kill the agreement, the judge wrote, Eckard's lawyer did in January, when he told Lamitina that Eckard had called off the whole thing.
What has just happened is that Mr. Lamitina has had his parental rights terminated. The child has been denied not only child support, but the benefit of visitation from his or her father. And he is the child's father, according to Chapter 39 (39.01(49)) referencing Chapter 63 at 63.062(1), assuming that Mr. Lamitina has acknowledged the child in writing.
Whatever surrogacy law might have to say about this situation, the Florida Supreme Court has ruled that the right to parent a child without intrusion is a constitutional right. While such reasoning usually applies to state action, as opposed to the private law of contracts implicated in the Lamitina case, I wonder aloud if the principle of a constitutional right might not trump the contract considerations.
Bottom line: if you are a woman who wants to have a child with a man, and then keep him away from your child even though he isn't a danger to the child, all you need to do is: sign a contract to carry his child and transfer custody to him and his wife; break the contract; demand child support; and then POOF, his parental rights will be terminated.
2 comments:
Dear Sir:
I applaud your legal theory and analysis with respect to the newly-formed Parental Alienation case involving our client Tom Lamitina.
As his counsel, we are of the same opinion and I look forward to standing on the front steps of the First District Court of Appeals with you and Tom when the ruling is promulgated that the Duval County Court's Order is vacated and Tom takes his child home.
In litigating this case as we have, we have encountered nothing but lies and fraud when looking at this case and the mother's warped sense of reality. The Mother had the audacity to take the stand and admit that she never signed the contract because of the late date that Tom signed it, but she did not have a problem signing the back of the check that he gave her after he signed the contract.
She will be exposed and the world will see what she did, if they have not already.
I did like your discussion on parental requirements and protection for future fathers. Our analysis is the same. It does appear though that if you want to have a child in Duval County, and are an unmarried male, you must have the Mother to be execute a document that acknowledges that the Sperm that she received from you was not a donation and that it was given for the sole purpose of procreation.
Of course, you will also have to have a Notary Public present so that her signature can be verified in the event of litigation.
Standing up for Father's,
Scott Alan Salomon, Esq.
I find the laws to contradict one another as well, however as Kansas Supreme Court just ruled 4 to 2, I find that Florida will as well find that intended parents that wish to consider surrogacy take the time and consideration of fulfilling a complete and total contract expressing all parties wishes. I believe that this child may never see her father until she reaches the age of 18 or until her mother allows her father to be in her life, as I do not believe that the courts will award him the ability to do such since he did not protect his intentions with written verifications. It's a sad situation. I do wonder though, if the mother would allow visitation or if something serious enough has happened during the pregnancy that would make her do otherwise. Many fathers do not pay child support or visit their child when it is court ordered, this father wants to. Yet, I do find it difficult to believe that he has not seen his child to date. Did he not see his child shortly after birth when he could have demanded such prior to any court ruling? I don't believe, Mr. Soloman, that your client will bring his child home. I am sorry for this and my heart breaks, but I do hope that this case causes intended parents and surrogates to consider the contract as a vital piece to creating a life.
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