Belsito v. Clark, CJ
| Decision Date | 09 April 2005 |
| Docket Number | No. CJ,CJ |
| Citation | 67 Ohio Misc.2d 54,644 N. E.2d 760 |
| Parties | Page 54 67 Ohio Misc.2d 54 644 N.E.2d 760 BELSITO et al. v. CLARK et al. 9 |
| Court | Ohio Court of Common Pleas |
Kurt R. Weitendorf, Akron, for Carol S. Clark.
George R. Wertz, guardian ad litem, for the unborn child.
FINDINGS OF FACT
Plaintiffs, Anthony and Shelly Belsito, were married September 26, 1992. They decided they wanted a large family. Unfortunately, approximately one month prior to their marriage, Shelly had to undergo a hysterectomy as a result of recently discovered cervical cancer. Her physician had to remove her uterus, but was able to save her ovaries so that she could continue to produce eggs.
Carol S. Clark is Shelly's younger sister. Around the same time as Shelly's hysterectomy, Carol gave birth to her third child. Carol knew how much having a family meant to Shelly and Tony so, at that time, Carol told Shelly that, if she could, she would carry Shelly and Tony's baby for them.
In October 1993, Shelly and Tony were accepted into the University Hospitals' program for in vitro fertilization, Shelly and Tony as the genetic parents and Carol as the surrogate host. Carol was to receive no compensation for her role as a surrogate for Shelly and Tony's baby. Carol testified that she planned to be no more than an aunt to the child.
Dr. Leon Sheean is the Director of the Laboratories for In Vitro Fertilization and Andrology at University Hospitals of Cleveland, MacDonald Hospital for Women ("MacDonald Hospital"). Since he became the director in January 1990, Dr. Sheean has overseen all in vitro fertilization and andrology procedures in the laboratory, has established the policies in place at the hospital, and has been responsible for maintaining records of the events and patients that are treated within the program.
Dr. Sheean testified as to the policies, procedures, and routines followed at MacDonald Hospital in reference to the in vitro fertilization program. Dr. Sheean testified in great detail as to the procedures involved, and the methods of quality control used to ensure that the fetus is the result of the genetic parents and that it is placed in the proper surrogate, resulting in "one-hundred percent certainty" that the child is the biological and genetic child of the infertile couple.
Pursuant to the policies of the in vitro fertilization program, there are several checks and balances to ensure the propriety of the eggs and the sperm. First, the frequent visits to the hospital during the evaluation and the treatment stages allow the staff at the lab to establish a conversive relationship with the parties, and to identify them by sight. Second, all the containers used in the process are clearly labeled prior to the cells' being placed into the container. The petri dishes are labeled and color-coded with a color that is unique to that patient.
All the foregoing procedures were followed in the Belsito case. In addition, Shelly, Tony, and Carol signed separate consent forms to participate in the program. Within these documents, the parties consented to their status within the program. The consent form signed by Carol Clark described her as a "carrier." The consent form signed by Shelly and Tony designated them as the "mother" and "father" of the child.
In approximately January 1994, Shelly and Carol began the process of preparing for the procedure. Prior to the planned embryo transfer, Shelly and Carol began taking various medications to align their fertility cycles and prepare their bodies for the procedure. In addition, Carol testified that she abstained from sexual intercourse for at least two months prior to the procedure and at least two weeks after the procedure.
On February 10, 1994, Shelly Belsito was admitted to MacDonald Hospital for the retrieval of the eggs from her ovaries. A total of ten eggs was recovered from Shelly. Tony's sperm was collected in a labeled container, washed, and added to the eggs. On February 12, 1994, Carol Clark was admitted to MacDonald Hospital for transfer of the embryos into her uterus. The two fertilized eggs were transferred into Carol's uterus by her physician. Shelly was also present at the transfer. Approximately two weeks after the transfer, the parties went to the hospital for a pregnancy test. At that time, it was confirmed that one of the two embryos did attach. Carol was carrying Shelly and Tony's child.
According to expert testimony of Dr. Sheean, the fetus placed in the carrier sets up an entirely separate system from the carrier. The uterus provides only a means of nourishment to and a means of carrying waste away from the baby's system. The uterus provides a "filtering system" for the child. Blood between the carrier and the fetus is not exchanged during the pregnancy, absent some complication. According to the opinion of Dr. Sheean, there would be no genetic or blood tie to the surrogate host.
Dr. Sheean expressed his opinion that the unborn child carried by Carol Clark was genetically the child of Anthony and Shelly Belsito, and that Carol Clark as a surrogate would contribute none of the DNA that would ultimately make up the genetics of the unborn child.
The parties knew that the baby was a boy, and planned on naming him Nicholas Anthony Belsito. The original due date for the child was calculated to be November 14, 1994. However, Carol was scheduled to undergo a Caesarean section on October 12, 1994, at Akron City Hospital. Shelly and Tony planned on being at Nicholas's birth. Shelly was also planning to nurse Nicholas.
In preparing for Nicholas's birth, Shelly spoke with Akron City Hospital regarding the birth certificate. She was told that, according to Ohio law, the woman who gave birth to the child will be listed on the birth certificate as the child's mother. Further, she was told that because Carol, the surrogate, and Tony, the genetic and biological father, are not married, the child will be considered illegitimate, and will be listed on his birth records as "Baby Boy Clark" and not as "Baby Boy Belsito."
As a result of that information, Anthony and Shelly Belsito filed a complaint for declaratory judgment with the court on September 14, 1994. A hearing was held on September 27, 1994. From that declaratory judgment and the hearing, the Belsitos have requested this court to declare that it is unnecessary for them to adopt the child now carried by Carol Clark. They contend that they are the genetic and natural parents of that child and are therefore entitled to be recognized as having the legal status of parents. In addition, they have requested that the court order the preparer of the birth certificate to reflect the legitimate status of the child and the Belsitos' status as the legal and natural parents of the child.
The central question of the declaratory judgment action before the court is, who is to assume the legal status of natural parents of the unborn child carried by Carol S. Clark?
Under the foregoing findings of fact, the court must conclude that Carol S. Clark is the gestational surrogate, and the genetic makeup of the child she carries has been determined by the egg and the sperm of Shelly Belsito and Anthony Belsito. The court is of the opinion that the law requires that, because Shelly Belsito and Anthony Belsito provided the child with its genetics, they must be designated as the legal and natural parents.
The analysis and law in support of that conclusion begin with the proposition that the law will impose the duties of a child-parent relationship and legal status of natural parents only upon those individuals who can be found to be a natural or adoptive parent. State v. Barger (1920), 14 Ohio App. 127, 129; Angel v. Angel (C.P.1956), 74 Ohio Law Abs. 531, 533-534, 2 O.O.2d 136, 137, 140 N.E.2d 86, 87. See, also, Burlington Cty. Welfare v. McClain (1983), 189 N.J.Super. 152, 458 A.2d 1348; Brummitt v. Kentucky (Ky.App.1962), 357 S.W.2d 37.
Since plaintiffs, Anthony Belsito and Shelly Belsito, have alleged that they are the natural parents and not subject to the adoption laws of this state, the analysis of the law must be confined to the question of what constitutes or identifies a "natural parent."
While various terms are used to identify a natural parent, a review of case law leads to the conclusion that "natural parent" refers to the child and parent being of the same blood or related by blood. Owens v. Bell (1983), 6 Ohio St.3d 46, 48, 6 OBR 65, 67-68, 451 N.E.2d 241, 243; R.C. 2317.47; R.C. 3111.09. Black's Law Dictionary defines "blood relations" as:
Black's Law Dictionary (6 Ed.Rev.1990) 172.
In modern terminology, blood relationship would be described as shared DNA or genetics. Support for the contention that genetic relationship is the modern equivalent of the term "blood relationship" can be found in the evidentiary practice in disputed parentage cases of comparing common biological characteristics. The practice involves the trier of fact's comparing genetic traits of the child and the alleged parent, such as facial features, build, and color of hair and eyes, to confirm or rebut a blood relationship. Domigan v. Gillette (1984), 17 Ohio App.3d 228, 17 OBR 494, 479 N.E.2d 291, paragraph two of the syllabus. Further support may be found in the fact that comparison of the blood of both parent and child for a genetic or DNA resemblance has become a recognized means of establishing parentage. See R.C. 3111.09.
Historically and at common law, blood relation was the primary means of establishing the legal status of a natural parent. 1 Blackstone, Commentaries on the Laws of England (7...
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