Monday, September 17, 2007

Orlanda Surrogacy and the Fight For Custody

This case represents the importance of having a legal contract in place prior to the medical procedure taking place, especially crucial in a traditional surrogacy case where the carrier is genetically linked to the child she gives birth to. When I am consulting with clients seeking a traditional surrogate, a woman who donates her eggs, as well as carries the child for the couple, I advise them of how critical it is to have the legal contract in place prior to the start of any insemination, whether at home or adminstered by a liscensed physician. In fact, after our consult, most couples feel traditional surrogacy is not worth the risk, and they choose to work with a separate egg donor and gestational carrier.

Surrogacy case delivers fight over custody

Rene Stutzman, Sentinel Staff Writer

September 16, 2007

http://www.orlandosentinel.com/orl-surrogate16sep16,0,1117330.story

Tom and Gwyn Lamitina of Oviedo wanted a baby.

They found a Jacksonville schoolteacher willing to bear a child for them and struck a deal. But before the baby was born, they had a falling out, and the mother refused to give up the child.

Today, 4-month-old Emma lives with her mother, but the Lamitinas are fighting to take her away. A Jacksonville judge is expected to decide in the next few days where the baby will live.

It is a heart-wrenching tale with a tough issue at its core: Who gets a baby conceived by two strangers when their deal falls apart before the child is born?

The mother, Stephanie Eckard, 30, decided long before the child was born that the baby would stay with her, according to her attorney, Kelly B. Hampton. As the biological mother -- the child was born from her egg -- that's her legal right, he said.

But Tom Lamitina, 45, a roofer, says the baby is his daughter, too. She would be better off living with him, his wife and their 21/2year-old son in Oviedo, he says.

So, he's spent $30,000 in the past several months on lawyers, hoping to bring home a baby girl he has yet to meet.

Surrogacy on rise

There are no statistics on how many surrogate mothers give birth in Florida each year, according to attorneys who specialize in the field. One of Florida's busiest, Charlotte Danciu of Delray Beach, said she has handled "several hundred" in the past three years.

Lawyers call Eckard's case a "traditional surrogacy," in which the woman who bears the child provides her own egg. Danciu said three-fourths of her cases, however, involve doctors implanting the fertilized egg of the intended mother into the womb of the surrogate.

For the Lamitinas and Eckard, there were no doctors and no lawyers -- at least no lawyers until it was too late.

Neither Tom Lamitina nor Stephanie Eckard is new to surrogate childbirthing. Lamitina's first child was born to a surrogate mother. That transaction, he said, went smoothly.

Woman found on Web

When he and his wife, Gwyn, 46, decided to have a second child, they turned to the same Internet Web site where they had found their first surrogate mother.

That's where they met Eckard, a divorced mother with two children who has given birth to two other children for couples, according to her lawyer.

Lamitina and Eckard made contact in April or May 2006. A few days later, Tom Lamitina had a face-to-face meeting with her, and they agreed to the deal, he said.

On May 15, Tom Lamitina traveled to Eckard's home in Jacksonville for their first attempt at home insemination, according to the couple. They went to separate rooms. He provided the sperm. Then in private, she used a syringe to complete the procedure.

After four to six attempts, Eckard became pregnant. She sent news to Tom Lamitina with balloons and a card of congratulations.

Never signed a contract

She also asked him to sign a contract, one based on a boilerplate for surrogate mothers that she found on the Internet. It required him to pay her$1,500 a month until the baby was born, he said.

He signed it. She never did, according to her attorney.

Their unstructured approach to nailing down parental rights was a big mistake, said Patricia Strowbridge, an Orlando adoption attorney who also handles as many as two dozen surrogacy cases a year.

"There's almost a limitless ability for people to get themselves into a legal quagmire," she said. "When people start dealing with creating children in their own sort of creative ways, they're going to wind up with huge legal problems because parental rights are very difficult to assess in this situation."

She said Eckard has the stronger case.

Smoking leads to breakup

The relationship between the Lamitinas and Eckard began to come apart about two months after Eckard got pregnant. In mid-October, Eckard and her family visited SeaWorld and stayed overnight with the Lamitinas, according to the couple.

While she was there, Gwyn Lamitina caught Eckard smoking a cigarette, something outlawed by the contract, she said.

After a series of discussions that turned increasingly hostile, the Lamitinas cut off their monthly payments to Eckard, saying they would pay only after the baby was born, they said.

Tom Lamitina accused Eckard of switching his sperm with someone else's.

That's about the time Eckard hired an attorney, insisted on DNA testing and pressed Tom Lamitina to renegotiate their contract, Tom Lamitina said.

The DNA tests proved the baby was his, but there was no new contract.

Lawsuit follows birth

Baby Emma was born May 9. Two weeks later, Eckard sued Lamitina, asking for custody and child-support payments.

"We're asking for sole custody," said Hampton, her attorney.

"We don't even want him to have any kind of visitation."

Tom Lamitina is bitter about the whole thing.

"I just felt that I was robbed," he said.

Circuit Judge W. Gregg McCaulie in Jacksonville could rule on where BabyEmma should live as early as this week.

Rene Stutzman can be reached at rstutzman@orlandosentinel.com or 407-324-7294.

Copyright © 2007, Orlando Sentinel

5 comments:

Anonymous said...

You stated that Eckard provided the "contract" to the "IP's". That she obtained it from a website. That is NOT accurate.

The "contract" came from their PREVIOUS traditional surrogate who just took out her information and replaced it with Eckard's.

It was sent to Eckard AFTER a pregnancy was confirmed AND it was NOT signed by the Intended parents it was sent to Eckard BLANK with no signatures.

I just wanted to clear the air on that statement..

Stephanie Caballero said...

I just provided the information from the article, which I did not write. A few of my clients have re-used a previous surrogacy contract and made some modifications to it. It's not the best route to go, as the laws could change. Further, I know I am constantly updating and revising my contract as issues come up so the contract may not be as thorough as it needed to be.

I believe the article did state the contract was never signed. If it didn't, it should have as that was a major issue in the case.

I am sure you know the case has been decided and the surrogate has custody of the child? I haven't read the full opinion so I do not know if she shares custody with the Intended Father.

Anonymous said...

To clear the air...If you had seen previous news reports on T.V. you would have seen that the Contract page with the Lamitina's was clearly signed and notarized before sending it to Stephanie Eckard. The reporters actually took a picture of the signature page and posted it on the news. So Anonymous is incorrect in saying that the Lamitina's never signed the signature page.Stephanie Eckard was the one that faxed the Lamitina's the signature page not the other way around.And the Lamitina's had testified to the fact in court that they did not know about the pregnancy until days later after they signed the contract and was sent balloons and a card congratulating them on there new baby from Stephanie Eckard.So clearly anonymous must be Stephanie Eckard or her live in girlfriend.Sounds like propaganda to me.If Stephanie Eckard wants to tell her SO CALLED TRUTH then why doesn't she tell it.Enlighten us please.These women need to get a job a life and a man.

Stephanie Caballero said...

While the majority of independent surrogacy cases go smoothly I think this case illustrates what can go wrong, especially when the parties involved do not hire legal counsel experienced in surrogacy. But from what I understand from the FL statute, even if the parties had counsel and an executed contract, the traditional surrogate can always change her mind and be awarded custody of the chld(ren). I am was not involved in the case, but I wondering if a psychological consult was provide for the surrogate?

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