Egg donor enters battle for custody of triplets
Wednesday, July 07, 2004

By Barbara White Stack, Pittsburgh Post-Gazette



In a case that raises profound questions about the meaning of parenthood, an Ohio judge yesterday indicated he would permit a third person -- the egg donor -- to take a step toward claiming triplets born to a surrogate mother eight months ago.

In a brief hearing in Akron, Summit County Common Pleas Judge John P. Quinn suggested he would permit genetic testing -- which would be standard in a routine custody or support case -- that would allow the egg donor to seek parental rights, including custody of the triplets.

It is virtually unheard of for egg or sperm donors to seek custody of a resulting child.

But then, there's precious little that's normal about this case in which an Erie County surrogate mother, Danielle Bimber, was granted temporary custody of triplets she bore under contract for an Ohio man.

The man, James O. Flynn, 62, of Cleveland, will ask an Erie County judge Friday to give the babies to him. He provided the sperm to fertilize the donor eggs and contracted with Bimber for the surrogate birth.

So now, three unrelated people, the sperm donor, the egg donor and the surrogate mother, all claim the three babies they helped produce.

If the decisions on parenthood by the Ohio and Pennsylvania judges conflict, it's unclear whose ruling would prevail.

Bimber's attorney, Joseph Martone of Erie, is expected to argue Friday before Erie County Common Pleas Judge Shad Connelly that she and her husband, who have three other children, should keep the babies because Bimber is the only one of the three seeking custody who has acted as a parent.

She gave the babies healthy births. She took them home from the hospital when Flynn failed to produce the legal documents necessary to secure custody and after he visited the babies only once shortly after they were born Nov. 19. For the past eight months, she has fed, changed, bathed and nurtured the babies as a mother.

Flynn, who has visited the babies, is expected to contend that he should get them because he contracted for their birth, paid tens of thousands of dollars in fees and provided half the genetic material to make each child. He says he would raise them with his 60-year-old fiancee, Eileen Donich.

If genetic tests prove that a woman identified in court records only as "J.R." is the biological mother, she is expected to argue some time later before Quinn in Ohio that her egg donation makes her the mother, so she should get the babies.

The Erie judge considered whether J.R. could be a parent, but dismissed that possibility because she had made no claim in Pennsylvania. It's unclear why she filed her claim in Ohio because none of those seeking custody live there and the children were not conceived there.

J.R., believed to be a college student from Texas, was not in court yesterday to speak for herself. But Steve Litz, director of the Indiana agency, Surrogate Mothers Inc., that arranged this surrogate birth, described her claim on the babies as a scam.


He charged that she does not want to raise the children. She is cooperating with Flynn, he said, and will give him the babies if she's awarded parental rights or custody.

Her claim is a fallback for Flynn if he loses the Pennsylvania custody case, Litz charged.

Flynn did not attend yesterday's hearing, and his attorney, like all of the attorneys in the case, was forbidden by Quinn from discussing it.

Flynn and the egg donor are represented, however, by attorneys from the same Akron firm, Dobbins & Henshaw. They are Elizabeth Dobbins and her father Richard E. Dobbins.

Litz, who is an attorney, said he knows of no case in which an egg or sperm donor won custody of a child. The vast majority are seeing payment for services, not the obligations of parenthood or child support. He said J.R. has been dismissed from his program as an egg donor.

If a donor can seek custody, it raises the question of whether a person using a donor egg or sperm could, in turn, seek child support.

Pennsylvania law does not address the issues of donation or surrogacy at all, a situation bemoaned by Connelly in his decision giving Bimber the right to seek custody of the babies.

That legal vacuum leaves the definition of parenthood far less clear than the test tubes in which the babies were conceived.