Memorandum for Paternity Case

IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND
FOR MIAMI-DADE COUNTY, FLORIDA

MASSIMILIANO XXXXXXX,         FAMILY DIVISION

Petitioner,         Case No. 11-120XX FC 4

vs.

MARIA XXXXXXX,

Respondent.
___________________/

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS
PETITION FOR THE DETERMINATION OF PARENTAGE

COMES NOW, MARIA XXXXXXX, by and through the undersigned attorney, and hereby files this Memorandum of Law in Support of Motion to Dismiss Petition for the Determination of Parentage and states:

FACTS

1. That the Respondent, MARIA XXXXXXX, is a lesbian in a relationship with Cher XXXXXXX, who are in a committed lesbian relationship, and are U.S. citizens. They have been in an exclusive and committed relationship since 1999 and legally married since July 19, 2011.

2. The Petitioner, MASSIMILIANO XXXXXXX, is an Italian citizen and a gay man. He married Sandee Saunders, a US citizen to obtain his green card and divorced her in 2010. See XXXXXXX v. Saunders, 2010-04XX-FC-04. He is a hair dresser and was acquainted with the Respondent, MARIA XXXXXXX, and the Respondent’s long-time partner CHER XXXXXXX, through his business.

3. The Respondent, MARIA XXXXXXX, and her long-time partner, CHER XXXXXXX, had tried unsuccessfully to have MARIA XXXXXXX, artificially inseminated by a private sperm donor clinic. Upon request, the Petitioner, MASIMILIANO XXXXXXX, volunteered to donate sperm for the artificial insemination of the Respondent, MARIA XXXXXXX, at her home. It was intended and agreed between the parties that the child would be raised by the Respondent, MARIA XXXXXXX, and her long-term partner, CHER XXXXXXX, as a family unit. The Petitioner, MASSIMILIANO XXXXXXX, was specifically informed of this fact and agreed to donate his sperm for artificial insemination for this purpose. There was no written agreement between the parties, however, it was clearly the intent of all parties that the Petitioner, MASSILIANO XXXXXXX, would serve only as a sperm donor for the sole purpose of artificially inseminating the Respondent, MARIA XXXXXXX. Until the commencement of legal proceedings all parties involved had a cordial relationship.

4. During a five or six day period in approximately June of 2010, the Petitioner, MASSIMILIANO XXXXXXX, came to the home of the Respondent, MARIA XXXXXXX, and the home of her long-time partner, CHER XXXXXXX, with his gay lover, Juan Mercado. The Petitioner, MASSILILIANO XXXXXXX, and his gay lover retreated to a private bedroom alone. Sperm was donated and placed into a donor cup. This donor cup was provided by the Respondent, MARIA XXXXXXX and her partner, CHER XXXXXXX. This sperm was then presented to the Respondent, MARIA XXXXXXX and her long-time partner, CHER XXXXXXX, who then privately retreated into another bedroom. The Respondent, MARIA XXXXXXX, was manually injected with this sperm by her long-time partner, CHER XXXXXXX. This process was repeated for approximately five or six consecutive days. With one exception during the middle of this time period, the Petitioner, MASSIMILIANO XXXXXXX, was always accompanied by his gay lover.

5. The Respondent, MARIA XXXXXXX, became pregnant and the minor child, to wit: EMMA HONEY XXXXXXX, was born on March 10, 2011. The minor child has resided with the Respondent, MARIA XXXXXXX, and her partner, CHER XXXXXXX, continuously since the time of the child’s birth.

6. There is no “Father” named or indicated on the child’s birth certificate.

7. The Petitioner, MASSIMILIANO XXXXXXX, never contributed to the medical or hospital expenses related to the pregnancy or birth.

8. On April 15th, 2011, the Petitioner, MASSIMILIANO XXXXXXX, filed a Verified Petition for Determination of Paternity and seeking custodial and visitation rights.

LEGAL ARGUMENT

XXXXXXX IS SIMPLY A SPERM DONOR

Based upon the facts alleged above, it is not even clear whether the Petitioner, MASSIMILIANO XXXXXXX, was the actual sperm donor. However, even assuming arguendo that the Petitioner, MASSIMILIANO XXXXXXX, was the sperm donor, he simply donated sperm through means of artificial insemination to impregnate the Respondent, MARIA XXXXXXX. The law is clear. One who donates sperm for the purpose of artificial insemination is defined as a “sperm donor”. “A person who provides sperm to a woman to conceive a child by artificial insemination is not a parent” and has no parental rights. See, Lamaritata v. Lucas, 823 So.2d 316 (Fla. 2nd DCA 2002).

Florida Statute 742.14 (1997) controls these arrangements and clearly states that “The donor of any egg, sperm, or preembryo, other than the commissioning couple or a father who has executed a preplanned adoption agreement...., shall relinquish all maternal or parental rights and obligations with respect to the donation or the resulting children.” [Emphasis added.]Section 742.13 F.S. (2008) defines “a commissioning couple” as “the intended mother and father of a child who will be conceived by means of assisted reproductive technology using the eggs or sperm of at least one of the intended parties.” [Emphasis added.]

The Petitioner, MASSIMILIANO XXXXXXX, is a sperm donor, plain and simple, and therefore does NOT fall within the statutory exceptions. There are simply NO facts which indicate the parties had any type of relationship which would fall under the rubric of “couple” or the definition of a “commissioning couple”. The parties are two gay women and one gay man. The two gay women have been in a committed relationship since 1999 and the gay man was in a gay relationship with another man at the time of the artificial insemination. It is clear that the Respondent, MARIA XXXXXXX, and the Petitioner MASSIMILIANO XXXXXXX, were NOT a “couple” in any sense of the word and they did not plan to raise the child as father and mother.

It is also clear that the Petitioner, MASSIMILIANO XXXXXXX, could only be characterized as a “sperm donor”. A sperm donor has no parental rights. The Petitioner, MASSIMILIANO XXXXXXX, is a nonparent, a statutory stranger to the children. Lamaritata v. Lucas, 823 So.2d 316 (Fla. 2nd DCA 2002). In the beautifully simple language of Chief Judge Blue in the 2nd DCA:

..this is a simple case that can be resolved in a one sentence opinion, to wit:
Danny A. Lucas is a sperm donor, not a parent, and has no parental rights; thus the court erred in establishing a visitation schedule. Unfortunately for the parties, it does not appear that the attorneys ever seemed to understand this principle and thus assisted the courts to the ruling we reverse. There has been protracted, unnecessary litigation in this case, including a prior visit to this court which should have ended this controversy. Id. At 316.

This case is on all fours with the case at bar. The only difference is that in the Lamaritata case there was a written contract and in the instant case the contract was verbal. It is clear that the Respondent, MARIA XXXXXXX, and the Petitioner, MASSIMILIANO XXXXXXX, joined forces solely for the purposes of artificially inseminating the Respondent, MARIA XXXXXXX. The fact that they enjoyed a cordial relationship until the commencement of legal proceedings by the Petitioner has no bearing on the determination that he is a sperm donor. In the Lamaritata case, the parties even stipulated to a visitation schedule. The Lamaritata court specifically found that agreement “not enforceable” since non-parents [ sperm donors] are not entitled to visitation rights. Florida courts do not recognize a claim for the specific performance of a contract for visitation in favor of the non-parent. Taylor v. Kennedy, 649 S0. 2d 270 (Fla. 5th DCA 1994).

CONCLUSION

Based upon the above stated facts and controlling case law, the Petition for Determination of Paternity should be dismissed as the Petitioner, MASSIMILIANO XXXXXXX, is at most simply a sperm donor and has no parental rights, is a statutory stranger to the child, and has no legal standing to determine parentage.

I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed/hand-delivered on September _____ , 2011 to JOHN Q., Esq., 407 Lincoln Street, Miami, FL 333333.

RESPECTFULLY SUBMITTED,

LAW OFFICES of KENNETH KAPLAN
8603 South Dixie Highway, Ste. 412
Miami, FL 33143
Tele: (305) 666-9797
Fax: (305) 666-9788
By:________________________
KENNETH M. KAPLAN, ESQ. FBN.: 0817902