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c. 1996 Religion News Service CLEVELAND _ Legal and medical ethics experts doubt Donald Ezzone will win custody of his petri-dish produced twins. The 3-year-old twins, Marcus and Gina Ezzone, resulted from an in vitro process, using his sperm to fertilize eggs donated by his wife’s sister, Rebecca Greathouse. The eggs were then implanted in […]

c. 1996 Religion News Service

CLEVELAND _ Legal and medical ethics experts doubt Donald Ezzone will win custody of his petri-dish produced twins.

The 3-year-old twins, Marcus and Gina Ezzone, resulted from an in vitro process, using his sperm to fertilize eggs donated by his wife’s sister, Rebecca Greathouse. The eggs were then implanted in Ezzone’s wife, Cynthia, who gave birth in September 1992.


Ezzone, a Lake County, Ohio, lawyer, now contends his estranged wife is not the twins’ legal mother and should not be granted custody because she did not provide their genetic material.

Reproductive experts say this is only the second case in the country in which a husband whose wife bore children from donated eggs has tried to assert custody based on genetics.

In the other case, set in New York state, the father lost. And experts in reproductive technology law and ethics interviewed about the case expect Ezzone to lose his fight, too.

“I’m an academic and I usually speak in academic terms,” said John A. Robertson, a nationally recognized reproductive law professor at the University of Texas in Austin. “But the husband (Ezzone) is ethically and legally out to lunch with his argument.”

Ezzone disagrees. “Technically, she’s the stepmother and an aunt,” he said. “She did carry the children. No one is trying to take that away from her. No one’s taking away her rights. But she is doing that to me. I’m not saying genetics makes me a better father, but genetics and natural paternal instincts flow my way more than hers. Think about this; she is a stranger genetically and biologically to those kids.”

Although questions about who is a child’s father have been raised for centuries, up until about a decade ago there was no question who was the child’s mother. Reproductive technology has changed that, and brought with it a slew of legal and ethical questions.

“Assisted reproduction technology has taken off pretty fast and the law is trying its best to catch up,” said Dr. Sheryl Kingsberg, a clinical psychologist at University Hospitals in Cleveland, which handled the Ezzones’ in vitro fertilization. “There are so many different issues.”


Kingsberg, who counsels couples during the in vitro process, said that although all potential third-party reproduction issues are raised with couples, “going through in vitro fertilization does not leave a couple immune from divorce. They have the right, like every other couple, to screw up. They should not be looked at differently than any other couple.”

Robertson and other experts said they would be surprised if the Lake County Domestic Relations Court awards custody to Donald Ezzone. They cite several reasons _ his intentions at the time of the in vitro procedure, backed up by two contracts, stating his wife would be the legal and natural mother, and birth certificates stating his wife as their mother. They also noted that Ohio law protects the fatherhood claims of men whose wives are impregnated by donated sperm and that equal protection should be provided to women who are impregnated with donated eggs.

Ohio has no laws that govern the issue. Ezzone cited a 1994 Ohio case to support his position. In that case, Shelly and Anthony Belsito of Kent gave their fertilized egg to her sister to carry. But because the sister would give birth, the sister’s name would appear on the birth certificate as the mother.

But the judge gave weight to genetics, and allowed the Belsitos to be named the legal parents.

The Belsitos’ lawyer, Richard E. Dobbins, doesn’t think his case can be relied on to sort out the Ezzone custody case.

“It’s a good argument that the father is using, that she has no station or standing to be the legal mother to receive custody,” Dobbins said. “But then, who do you say is?” The issue Ezzone raises is “really muddy water. It’s really up in the air.”


It’s not muddy for Cynthia Ezzone. “I don’t want other women to have to go through what I’m going through. … What happens to us will affect a lot of people. What’s happened is the furthest thing from my mind. Would my sister have done what she did knowing I would be a surrogate if this would happen down the line?”

Donald Ezzone counters: “She’s taking custody away from me by stating she’s the mother. … I am the natural father and should have primary custody and she should have visitation and overnight-stay privileges.”

He said his wife won the race to the courthouse, “and in Lake County that’s important.”

Domestic Relations Judge Francine M. Bruening gave Cynthia Ezzone temporary custody on May 1, the day she filed her lawsuit. The order allows Ezzone eight hours per week with his children.

Donald Ezzone said his legal research indicated he would have primary responsibility. He said the final two pages in the Belsito decision state genetics is the controlling factor, not intent or contracts. He said he didn’t raise the Belsito case until his wife tried to take away custodial rights.

“Damn, I think it’s important to me to have my children back,” Donald Ezzone said.


Cynthia Ezzone’s sister, Rebecca Greathouse, has declined to comment. Cynthia Ezzone, her lawyer Milton Stern and Greathouse, who is Stern’s secretary, declined to say whether Greathouse would play a part in the case in the future.

Only five states _ Florida, North Dakota, Oklahoma, Texas and Virginia _ have egg-donation statutes, said Susan L. Crockin, a lawyer in Boston who specializes in reproduction technology. Though the statutes vary from state to state, at their core is that a child born via egg donation is the child of the marriage, Crockin said.

“I think states should have laws clarifying the status of children for the protection of children,” Crockin said. “No child needs to be at the center of a lawsuit.”

In states lacking egg-donation laws, Crockin said, donor sperm statutes should be applied, or looked at for guidance.

Ohio’s law, like the other 30-some states with a sperm-donation statute on the books, treats the husband whose wife has been inseminated with sperm other than her husband’s as the natural father of a child, “and a child so conceived shall be treated in law and regarded as the natural child of the husband.”

Since the husband is considered to be the legal father, then by analogy, the wife, especially one who carried and nourished the child, should be considered the natural mother under equal protection of the law, said Terri Finesmith Horwich, an adoption and reproduction technology lawyer in Chicago.


“I would be surprised if a court awarded custody on the fact that mother is not the genetic mother of the child,” Horwich said.

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Although Ohio is not bound by lawsuits in other states, one that mirrors the Ezzone case was decided in New York in 1991 and upheld on appeal in 1994.

In that case, a father sought custody of twin girls born by his wife through in vitro fertilization using his sperm and a donor’s eggs. Custody was awarded to the wife.

“He was the natural father. But the court did not deem that significant enough to transfer custody to the father,” said Mitchell N. Kay, a matrimonial lawyer in New York City who represented the mother. “The fact that it was not her eggs did not matter. She was the one who nourished the children through the entire term of the pregnancy and was the birth mother. I can’t imagine why another court would view it another way.”

Rebecca Dresser, a law faculty member of the Center for Biomedical Ethics at Case Western Reserve University in Cleveland, also doubts the strength of Ezzone’s case. If the women _ and the husband _ have agreed to transfer the mothering rights, it’s doubtful that arrangement could be disrupted by the husband’s suit.

She also does not think the Belsito case can be cited as precedent.

“That was quite a different situation. The judge in that decision, while he did give a lot of weight to genetic parenthood, said in some situations it will be the gestational mother who wants to be the legal mother and that should be legally recognized _ as long as the genetic mother gives consent.”


Dresser said the crucial issue among bioethicists is the original intent of adults bringing children into the world.

“If you have three parties, the genetic and gestational mother and the father, who agree on certain arrangements before the child is born, and nobody dissents after the children are born and for 3 and one-half years afterward, it seems to me that there are a lot of good reasons to stick with that agreement. I’m not aware of any good reason why the arrangement should be disrupted, especially when the women have no disagreement (over who the mother should be).”

MJP END RNS

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