One Last Time? OH/PA Triplet Surrogacy Case Parent Dies

A long time ago–really when this blog was just starting up–I wrote about a surrogacy case involving triplets born in Pennsylvania.   James Flynn was a professor of mathematics who lived in Ohio.   He wanted to become a parent.  He purchased an egg from a provider in Texas, had it fertilized with his own sperm and had the resulting embryos transferred to Danielle Bimber.   Bimber signed a contract to be a surrogate mother and to surrender any resulting children to Flynn. 

Bimber gave birth to triplets in November, 2003.  She changed her mind about turning over the children and took them home with her.  They lived with her for 2 1/2 years.   There was litigation in both Ohio and Pennsylvania and the end result that Flynn (legally the father by virtue of the DNA) was awarded custody of the children.  In the view of the relevant judges, Bimber had no standing of any kind.   The children thus were moved from Bimber’s home to Flynn’s. 

Flynn was 64 when the children were born.  He was unmarried and lived with a woman who originally was described as his “paramour”–a retired dentist named Eileen Donich.   She had no claim to be the mother of the children and as far as I can recall wasn’t actual even a party in any of the litigation.   In later press reports she was described as his fiancee. 

Now for the tw0-and-one-half years that the triplets lived with Bimber and her husband (who might have had a legal claim to parentage as the husband of Bimber, had she been found to be the mother), Flynn paid child support–a total of $48,000.     Once the triplets were moved to his custody, Flynn tried to get that money back.   In 2008 a Pennsylvania court ruled against him.  The logic here is that he always asserted he was the father of the children and the court’s agreed with him in the end.   As such, he had an obligation to support the children.    

It might be hard to believe that yet more litigation could follow, but it did.  This time Flynn and Donich sued the hospital where the triplets were born for damages incurred when the hospital let Bimber take the triplets home.  This case was set for trial in March, 2011.  

This brings us to the current news storyFlynn recently died.    (My thanks to Spin Doctor for alerting me to this development.)   

While the news stories focus on the continuing legal struggle, I cannot help but wonder about parentage.    There’s no indication anywhere that Donich (who is now 66 in case you are wondering) ever adopted the triplets.   I don’t think she would have become the mother of the children simply by virtue of marrying their father, though it might be an interesting argument if she had married him before the children were born.   (That’s clearly not the case.  Even in 2008 she is identified as a “fiancee.”) 

The triplets are now seven years old.  They lived in one household for 2 1/2 years and then abruptly shifted to another.   Their conception/birth has been the subject of litigation for their entire lives.   I cannot help but wonder what will happen to them now.  

I am not even sure I can figure out what I think ought to happen.    Perhaps, from a  functional parent point of view, Donich should be recognized as a parent.  That would depend on the facts.   But in my view Bimber shouldn’t have been cut out initially and so there’s that classic passage of time problem.  Does Bimber lose all rights because of what was (in my view) poor reasoning combined with the passage of time?  There seems to be little possibility that Donich and Bimber (or the Bimbers together) could share custody, so this may come down to a choice between the two households.  

I suppose I can simply conclude there don’t seem to be a lot of easy answers.   I’ll try to keep an eye on what happens next.

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3 responses to “One Last Time? OH/PA Triplet Surrogacy Case Parent Dies

  1. I offer three lessons learned from this case.

    First, most IVF Clinics self regulate on the age of the Intended Parent or Parents. While the paradigm may change practice to practice, the ultimate aim is to provide reasonable assurances that the child will be with their parent through high school.

    Second, even a cursory review of these cases demonstrate the problems with presenting complex legal issues to jurisdictions which offer no supporting legislation or reported cases.

    Third, when a surrogate is pursuing a bankruptcy concurrent with the early part of the surrogacy, alarms should go off. Responsible ART professionals do not engage parties to a surrogacy when financial interests are the obvious motivating factor.

    • I might add a fourth lesson, which is perhaps implicit in your comments. The role of money is complicated. (I suppose that’s not much of a lesson.)

      I don’t know a thing about whoever put the surrogacy together, but it seems to me they acted irresponsibly in setting up this multi-state deal with relatively little thought to potential conflicts of law from different states and in failing to properly screen and/or counsel both the IP and the surrogate. And I assume they did all this because it was in their interest to have the deal go forward. I’m more concerned about that financial interest than the financial interest of the surrogate. I resist the assumption that money was the obvious or sole motivating factor for Ms. Bimber (the surrogate). I would imagine the motivation was more complicated than that.

  2. Are there any updates on this story? It’s really interesting and I’ve been really interested in surrogacy and the law lately. Thanks for sharing.

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