Wednesday, May 30, 2007

Birth Battle: Couple Says Surrogate Mom Won't Give Up Baby

As an attorney licensed to practice law in the state of California, my first response to the article below is who was the drafting attorney? It is the drafting attorney's responsibility to ensure that the Intended Parents and the Surrogate execute (sign) the contract before any legal clearance is issued. Which leads me to my next question: Who was the IVF physician? The majority of IVF physicians that I work with (I know of only one) will not perform an artificial insemination (IUI) or an in vitro procedure (IVF) without receiving legal clearance from the drafting attorney.

Further, I always counsel my IPs that if they are going to work with a traditional surrogate, they are leaving themselves open to the very real possibility that the surrogate could change her mind and decide to keep the child. In California, the court would side with the surrogate and she would be declared the legal mother (see Johnson v. Calvert).

Also, the surrogate should have had a consult with a licensed psychologist who specializes in assisted reproduction. Perhaps this couple would not be in the predicament that they face today. I am not licensed to practice law in the state of Florida, but it is my understanding that there are some laws that protect couples who enter into a traditional surrogacy agreement.

The contract was not executed, however, the parties should have at least signed consent forms in the doctor's office, which would be evidence of the parties' intent, which controls in California (see Johnson v. Calvert and In Re Marriage of Buzzanca). One can only hope that the doctor involved, if there was one, had the parties execute those documents.

By Grayson Kamm
First Coast News

JACKSONVILLE, FL -- A couple paid a First Coast woman to have their child because they couldn't conceive on their own. Now, they say she won't give them the baby.

It's a birth battle that stretches across Florida. The couple that wants to bring this baby to their home says it's fraud, extortion, but -- most of all -- it's heartbreaking.

In a home near Orlando sits a baby's bedroom, trimmed out with a Tinkerbell theme. It was all lovingly built by the Lamitina family for their new baby girl, Rochelle Amber.

But that baby may never lay its head in this crib.

“My biggest fear is that we may not be able to bring her home. That's what's so hard,” said Gwyn Lamitina, as tears rolled down her cheeks.

The Lamitinas say they had a great experience having a surrogate mom give birth to their two-year-old son TJ, so they were thrilled to try it again. Through a website, they found and hired a surrogate mother from Jacksonville.

But they say this fairy tale turned foul.

"I just kinda hope -- I pray everything will work out all right," said a tearful Tom Lamitina.

Last year, the couple says it signed a "surrogacy contract" with the Jacksonville woman. But they say since they trusted her, they never checked to see if she signed the document.

Then, two months into the pregnancy, the family says their surrogate started asking strange questions. "Personal questions, like how much money I made doing this, doing that. And then how much money I made at the end of the year," Tom remembered. "My first surrogate never asked me how much money I made."

And then, a letter arrived from the surrogate mother's lawyer.

It says this case is now a "child support issue."

"We didn't think anybody would be that low to use a child as a way to scam people out of money. That's pretty -- I mean -- I just didn't think anybody would be that low," Tom said.

We went to the mother's home in Argyle Forest looking for answers. As we did, a woman sped away. In the back of her minivan was what looked like the handle of a baby's car seat.

At the doorstep, a hand reached out from inside the house and stuck a sign on the front door. It said "No comment," and suggested we contact the surrogate mother's attorney.

So we did.

The surrogate's lawyer, Kelly Hampton, declined an on-camera interview, but said over the phone, "Under the laws of the State of Florida, surrogacy is like adoption. The surrogate mom has the option to keep the baby."

We asked, "Is she asking for child support?" The attorney said, "I'm not going to answer that."

Both sides agreed to a DNA test. A document provided to First Coast News by the Lamitinas showed the test was performed by a company on the First Coast and that the test determined a 99.9999 percent probability that Tom Lamitina is the baby's father.

Tom says the surrogate did cash their $1,500 deposit check.

But still, the couple says the surrogate, who provided the egg, never signed that contract. To them, the motive's clear.

"Fraud. Very fraudulent," Gwyn said. "It's almost like extortion... I have the baby, and you have to do what I want."

For now, like their hearts, the baby's room is empty.

"I have been praying a lot and I've got a lot of people praying for me. It's gonna be all right," Tom said.

The Lamitinas' attorney says he plans to go to court soon, filing a suit to give the family full custody of the baby.


Anonymous said...

If family courts "claim" they are not gender biased, then that would mean that the legal father should have a right to fight for custody, not that the mother will automatically get custody. With that said, I would think that the Family Court should just award custody to the father, giving the mother supervised visits just like any other non-custodial parent...and make her pay child support instead.

sunnyhoney said...

my heart go's out to the couple and I don't know how this woman can live with herself after what she has done it may not be the same thing but I had a daughter at home who was 3yrs with add and I was pregnant again and I wanted this baby to have things that I could not give her so I let a very special couple adopt her she was the apple of there eye she was daddy's little girl and sooooooooo sweeta and then when she was 19 she was out with a guy she was trying to call it quits with he was drinking and then the accident and amy was killed on impact and he lived they said in court it was her body that saved him I still today find this hard to live with and often wonder would she still be alive if I had kept her but I know that all though she was young I know she was Loved very,very much not just by her mom and dad and brother,sisters and myself but Loved by everybody who knew her but all in all if I had to do it all over again I wouldn't change a thing she was only 19 but I know she had a great life

thank you
for reading