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US Court rules that surrogate mother can keep child

15 October 2007
Appeared in BioNews 429

Last week a Florida court settled a custody battle in favour of surrogate mother, Stephanie Eckard, who will retain custody of her five-month-old daughter. Circuit Judge W. Gregg McCaulie ruled that any surrogacy agreement between the couple and Eckard had been previously terminated, and, beyond this, the adoption contract, which had been adapted from an online surrogacy site, was invalid.

Despite the existence of a contract and its ratification through Eckard accepting money in respect of it, McCaulie wrote that decisions for adoption and surrogacy are too important to be valid with the use of Internet forms and without independent legal advice. Thus, McCaulie upheld Florida law that without a valid surrogate adoption agreement, Thomas Lamitina, the biological father, is legally equivalent to a sperm donor bearing no paternal rights or responsibilities and denying Eckard her claim to child support.

The Lamitinas, who also have a son through surrogacy, are said to be devastated and will appeal the decision. The couple arranged through a website called 'Surrogate Mothers Online' for Eckard, a teacher with two children of her own and who has had two children for adopting couples, to bear a child for their adoption using her egg and Tom Lamitina's sperm. Eckard became pregnant in August 2006 but a few months later the two sides began having problems, stopped talking and Eckard hired a lawyer. The birth of Emma Eckard in May was unknown to the Lamitinas and two weeks later Eckard sued Tom Lamitina for custody and child support.

Eckard's lawyer claims that Eckard informed the couple that she wished to keep the baby and also that Tom Eckard had communicated earlier in the pregnancy that the couple no longer wanted the baby. According to Florida law, a mother may change her mind against adoption at anytime during pregnancy and up to 48 hours after birth. The Lamitinas' lawyer disagrees that a Court can deny a father the right to know his child when the child is half his DNA and his intention was always to be a parent to the child not a sperm donor.

The decision goes against a legal trend in states such as California and Massachusetts to protect intentional parenthood and highlights the legal uncertainty for surrogacy arrangements in the US where most states lack any clear law in this area. Individual cases become highly circumstantial in light of the inadequate commercial contract law applied. Courts tend to decide on the basis of whether deception exists and the difficult task of weighing the significance of genetic parentage, often emphasising whether one or both of the commissioning couple is biologically linked to the child.

Surrogate mom can keep baby, judge rules
The Orlando Sentinel |  11 October 2007
Surrogate mother wins custody
The Times Union |  10 October 2007
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