Despite a court ruling against them, a Florida couple vows to continue their legal battle to gain custody of a child born by the woman they hired as a surrogate, but who then decided to keep the baby.
The issue, Tom and Gwyn Lamitina say, is not about Florida surrogacy law, which clearly gives the woman the right to the child. They are fighting for Tom Lamitina’s rights as the father of the child.
“We filed an appeal,” Scott Alan Salomon, the attorney for the couple, told TODAY co-host Meredith Vieira when all three appeared on the program Tuesday. “The trial judge overstepped his bounds. He had no right whatsoever to terminate parental rights in a paternity action.”
Gwyn Lamitina, 46, said the couple wants custody of the child they think is rightfully theirs.
“We would ultimately like to have primary custody,” she said. “If the judge deems that [the surrogate] has visitation, we would be up for that.”
The child, Emma Grace, was born five months ago to Stephanie Eckard, whom the Lamitinas had met through an online site on which women who want to be surrogates advertise their availability.
Eckard, 30, is a teacher and a single mother of two other children of her own. According to Salomon, she had delivered three surrogate children for other couples before meeting the Lamitinas. Eckard lives in Jacksonville, in the northeast corner of the state, while the Lamitinas live in the Central Florida town of Oviedo. Eckard has declined all requests to be interviewed.
But a month after Eckard became pregnant, she and the Lamitinas had a confrontation over Eckard’s smoking. Eckard broke off contact and decided to keep the child as her own. The Lamitinas had paid her $1,500 to carry the child.
Absolute right to baby
The Lamitinas have never seen the girl. “I haven’t known anything about her,” Gwyn Lamitina told Vieira. “I had to find out she was born through the press.”
Because Emma Grace was conceived with Eckard’s egg and not Gwyn Lamitina’s, Florida law gives Eckard the absolute right to decide to keep the child up until 48 hours after the birth. The trial court upheld that law on Oct. 11.
For that reason, Florida surrogacy lawyer Charlotte Danciu told NBC News in a recorded interview, “Couples should never let a surrogate use her own egg.”
Danciu said that couples should not enter into a surrogacy agreement without an attorney, something the Lamitinas did not do. They explain that they went through a surrogate to have their first son, 2½-year-old T.J., and did not have an attorney. Because everything went well — they’re still on good terms with T.J.’s surrogate — they didn’t feel they needed an attorney when they decided to have a second child.
“We never even got a lawyer the first time,” Tom Lamitina, 45, said. “If you’re both on the same page, why bother getting an attorney?” Besides, he added, “If we did get an attorney, she could still change her mind at the end, so it wouldn’t matter if we had an attorney or not.”
As Danciu said, the law in Florida is very clear: A surrogate pregnancy with the surrogate’s own egg is treated as an adoption and the birth mother can decide to keep the child, even if there is a signed contract. Tom Lamitina is the father of the child, but the law treats him as a sperm donor with no parental rights.
“That is absolutely incorrect,” said Salomon. “A sperm donor is one that signs a contract that says ‘I am waiving my parental rights.’ Tom voluntarily paid money to give a woman his sperm. He is not a sperm donor. He was doing this with the sole intent to become a father. That’s the biggest joke of this whole case.”
He said the Lamitinas’ case is rightly a paternity case in which Tom Lamitina is seeking custody of his own son.
“Half of this child’s DNA is Tom’s,” Salomon said. “The judge unilaterally said, ‘We don’t care about that. You have no rights.’”
Vieira asked if there is a legal precedent for that claim, to which Salomon replied, “There will be one now.”
Gwyn Lamitina said she would now advise other parents thinking about using a surrogate to get an attorney. “You definitely need to discuss the what-ifs and get it on paper. ‘What if she decides to keep it?’ All of that needs to be addressed.”