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Moot Court
11/15/07
GIVE ATTENTION AN YOU
SHALL BE HEARD.
THE STATE OF FLORIDA.,,,,
GOOD AFTERNOON.
LADIES AND GENTLEMEN,
THE FLORIDA SUPREME
COURT.
PLEASE BE SEATED.
GOOD AFTERNOON AND
WELCOME TO THE SUPREME
COURT OF NEWNO CARRIERRINGCONNECT 115200
ARGUMENT AFTER THE BIRTH
OF THAT CHILD, IT WAS
DISCOVERED THAT BY
ACTUALLY MICHAEL KELLER
THAT IT WAS NOT THE
GENETIC CHILD OF THEM.
A BLOOD TEST WAS DONE
UPON BIRTH WHICH
IDENTIFIED THE BLOOD
TYPE WOULD NOT MATCH OF
THAT THE PARENTS.
HE RECOGNIZED THIS
DISTINCTION AN BROUGHT
IT TO THE ATTENTION OF
THE CLINIC, THAT PERHAPS
A DONOR EGG HAD BEEN
SUPPLEMENTED, THIS WAS
NOT THEIR GENETIC CHILD.
TWO WEEKS AFTER THAT, IT
WAS DETERMINED THAT
STOWES WERE BIOLOGICAL
PARENTS OF THE CHILD
THAT KARON KELLER HAD
GIVEN BIRTH.
AS A RESULT, KARON
KELLER WAS NOT ABLE TO
GIVER, SHE HAD A
HYSTERECTOMY, NO LONGER
ABLE TO CARRY CHILDREN,
BUT PATRICK KELLER HAS
GROWN, LIVED WITH THEM
FOR THREE YEAR, IT WAIL
BE THE THIRD BIRTHDAY IN
A WEEK, THIS IS THE
FAMILY HE HAS BEEN WITH
HIS ENTIRE LIFE.
WE'RE ASKING THE COURT
TO VACATE THE RULING OF
THE INTERIMMEDIATE COURT
AND REINSTATE FINDING
THAT PATRICK KELLER IS
THE LEGAL CHILD OF
MICHAEL AND -- MICHAEL
AND KARON KELLER.
WE ARE ASKING THAT THIS
COURT IN THIS
DETERMINATION USE THE
BEST INTEREST OF THE
CHILD TEST.
THIS TEST IS MOST
APPROPRIATE AND
CIRCUMSTANCE SUCH AS
THAT BECAUSE IT ALLOWS
FOR CONSIDERATION THAT
ARE OTHERWISE NOT
PROVIDED FOR.
DUE TO THE COMPLEXITY OF
THE MISTAKEN ASSISTIVE
REPRODUCTIVE CASE.
THE FACTS CENTERED
AROUND THE CHILD ARE THE
ONES THAT ARE MOST
RELEVANT, MOST NEED THE
ATTENTION OF THIS COURT.
THE OTHER TEST AVAILABLE
ARE GENETIC
CONTRIBUTIONS THEORY,
THE GUEST NATIONAL
MOTHER PREV VENSE, WE
PROPOSED THAT ALL OF
THOSE TESTS WASH IN THE
CASE LIKE THIS AS
WITHHELD BY THE TRIAL
LEVEL COURT THAT THE
INTENT TEST DOES NOT DO
JUSTICE TO THE
CIRCUMSTANCE BECAUSE
BOTH PARTIES WENT INTO
THIS CLINIC WITH THE
INTENT OF CREATING A
CHILD THAT THEY WOULD
THEN TAKE HOME AND RAISE
AS THEIR OWN.
THEY ALSO, THE GENETIC
AND GESTATIONAL TESTS
WASH BECAUSE THE
COMPETING CLAIMS WOULD
EQUAL OUT IN THE EYES OF
THE LAW.
THE GESTATIONAL MOTHER
BOND, THE ONE THAT COURT
RECOGNIZED THROUGHOUT
HISTORY, MOST STATES
STILL HAVE A COMMON LAW
PRESUMPTION THAT THE
GUEST NATIONAL MOTHER IS
THE LEGAL MOTHER, THE
BIRTH MOTHER'S CLAIM IS
PREDOMINANT; HOWEVER,
WITH THE ADVENT OF THE
REPRODUCTIVE TECHNOLOGY,
WE REALIZED THAT GENETIC
CONTRIBUTION CAN BE AS
TERMINATE IN THIS SORT
OF CIRCUMSTANCE.
>> WELL, IF WE ARE GOING
TO USE THE BEST INTEREST
OF THE CHILD AND WE
PROJECT INTO THE FUTURE,
A LITTLE BIT HERE, AND
THIS CHILD, THE PHYSICAL
CHARACTERISTICS OF THE
CHILD FLUSH THEMSELVES
OUT RATHER CLEARLY, AND
AT SOME POINT, THIS
CHILD, OBVIOUSLY, IN
TERMS OF THE PARENTS AND
ALL KINDS OF OTHER
CHARACTERISTICS IS
CLEARLY NOT THE CHILD OF
THE PARENTS THAT HAVE
CUSTODY, SHOULD WE
CONSIDER A FACTOR LIKE
THAT AS FAR AS ASSUMING
THEN THAT THE CHILD IS
TOLD THAT, NO, YOUR TRUE
PARENTS, YOU KNOW, THAT
GAVE YOU YOUR GENE, YOUR
PHYSICAL CHARACTERISTICS,
ALL OF THOSE KINDS OF
THINGS LIKE THAT ARE
DIFFERENT, OKAY?
HOW, HOW IS THAT GOING
TO IMPACT A CHILD?
HOW SHOULD WE FACTOR IN
SOMETHING LIKE THAT IN A
CONSIDERATION NOW WHERE
THE GEN KETIC PARENTS
ARE NOT GOING TO HAVE
CUSTODY OF THE CHILD?
>> ABSOLUTELY, YOUR
HONOR.
THE POTENTIAL IMPORT OF
A CHILD FINDING OUT THAT
THE PARENTS THAT IT HAS
LIVED WITH ITS ENTIRE
LIFE ARE NOT ITS GENETIC
PARENTS IS NOT A
FLEETING ONE, WE DO NEED
TO CONSIDER THAT, BUT
THERE HAVE BEEN
THOUSANDS OF CASES ON
THE UNITED STATES, WHERE
ADOPTED CHILDREN HAVE
SUCCESSFULLY
INCORPORATED INTO THE
FAMILIES THAT THEY HAVE
BEEN A PART OF.
IN THIS CASE, IT IS
ARGUABLE TRUE TO SAY
THAT IT WOULD BE JUST AS
DETRIMENTAL TO PATRICK
TO FIND OUT IN TEN YEARS
THAT HE WAS TAKEN FROM
THE PARENTS THAT RAISED
HIM THE FIRST THREE
YEARS OF HIS LIFE, THE
WOMAN THAT ACTUALLY
CARRIED HIM IN THE WOMAN
AND GAVE BIRTH TO HIM,
IT COULD BE JUST AS
DETRIMENTAL TO HIS
PSYCHOLOGICAL
DEVELOPMENT AS AN ADULT
TO REALIZED WAE PULLED
FROM THE ARMS OF THAT
FAMILY, THAT HE DID NOT
ACTUALLY IN FACT GROW UP
WITH THE PARENTS THAT HE
HAD HIS DNA FROM.
>> WHERE DO WE HAVE IN
OUR LAWS IN THIS STATE A
INDICATION THAT THE BEST
INTEREST TEST IS THE ONE
THAT SHOULD GOVERN IN
THIS TYPE OF SITUATION?
>> THERE IS NO SPECIFIC
RESPONSE TO THAT IN OUR
STATE, YOUR HONOR.
THE INTENT TEST IS A
PREVALENT TEST
THROUGHOUT THE UNITED
STATES IN ASSISTIVE
REPRODUCTIVE TECHNOLOGY
CASES; HOWEVER, IT IS
APPLICABLE WHEN THERE IS
AN AGREED-TO CONTRACT.
THERE WAS NO SUCH
CONTRACT HERE.
>> WELL, LET ME ASK YOU
-- JUST GO BACK, ON
THOSE CASES, THEN, WHERE
THEY APPLY THE INTENT
TEST, ARE THOSE COURTS
ANALYZING THE INTENT AS
BASED ON A CONTRACTUAL
NOTION?
>> EVENTUALLY, YOUR
HONOR, THE INTENT
STANDARD IS SPECIFICALLY
CLARIFIED BY THE FOURTH
CIRCUIT IN CALIFORNIA IN
JOHNSON VERSUS CALVERT,
WHERE IT SAYS SHE WHO
INTENDED TO BRING ABOUT
THE BIRTH OF A CHILD
THAT SHE INTENDED TO
RAISE AS HER OWN IS THE
MOTHER WHO HAD INTENT TO
CREATE THAT CHILD.
>> BUT SOUNDS TO ME THAT
IS CONTRACTUAL, I WOULD
THINK THAT WHEN WE ARE
DEALING WITH A CHILD
WHERE THERE WAS NOT ANY
PRE-EXISTING AGREEMENT
THAT I AGREE WITH YOU,
THAT TEST DOESN'T SEEM
APPLICABLE, BUT WHERE,
THEN, DO WE DRAW THE
BEST INTEREST TEST FROM?
IN OTHER WORDS, IN
LOOKING AT PRECEDENT,
HOW WOULD YOU FASHION A
RULE OF LAW THIS WOULD
APPLY TO CASES IN THE
FUTURE?
>> YES, YOUR HONOR.
THE CALIFORNIA'S UNIFORM
PARENTING ACT
SPECIFICALLY REQUIRES AN
ANALYSIS OF THE BEST
INTEREST OF THE CHILD IN
AN INTERPRETATION OR IN
A DETERMINATION OF LEGAL
PARENTAGE.
ALSO, THE JUDGE IN
JOHNSON VERSUS CALVERT
IDENTIFY THE BEST
INTEREST OF THE CHILD
ARE PARAMOUNTAIN
DECISION OF THE LEGAL
PARENTS OF THE CHILD.
>> WELL, IF WE ARE GOING
TO TALK ABOUT THE BEST
INTEREST OF THE CHILD, I
THINK WE HAVE TO SORT OF
PROJECT FORWARD AS
JUSTICE ANSTEAD WAS
DOING AND WE KNOW THAT
QUITE OF TEN, CHILDREN
WHO FUND OUT THAT THEY
HAVE BEEN ADOPTED WANT
TO KNOW WHO THEIR REAL
PARENTS ARE, AND YOU
KNOW, IF THIS CHILD
FINDS OUT AT SOME POINT
THAT, YES, MY BIOLOGICAL
PARENTS WANTED ME AND
THEY, YET, THEY WERE MOT
GIVEN CUSTODY OF ME,
DON'T YOU THINK THAT
WOULD HAVE A DETRIMENTAL
IMPACT, WHERE AS, RIGHT
NOW, AT THE AGE OF 3,
THE CHILD CAN REALLY BE
MOLDED AND THIS MAY NOT
HAVE THE SAME KIND OF
IMPACT.
I AM NOT SEEING HOW
GIVING THIS CHILD TO THE
KELLERS IS REALLY IN THE
BEST INTEREST OF THIS
CHILD.
>> YES, YOUR HONOR.
THERE ARE A NUMBER OF
ARTICLES THAT
SPECIFICALLY CITE THE
COURT'S OUT LADIES AND
GENTLEMEN OF
PSYCHOLOGICAL ANALYSIS
IN THE SITUATIONS.
MAIL SIS OF THE CHILD'S
DEVELOPMENT AND THE
PSYCHOLOGICAL BONDS THAT
ARE CREATED ON THE FIRST
YEAR SPECIFICALLY AND
THE FIRST THREE YEARS OF
LIFE.
THOSE BONDS ARE
SPECIFICALLY RELEVANT IN
THAT THEY ARE KEY TO
EMOTIONAL DEVELOPMENT.
THE PRIMARY CAREGIVER
BECOMES THE
PSYCHOLOGICAL PARENT OF
THE CHILD AND DURING THE
FIRST THREE YEARS, THIS
BOND IS SOLIDIFIED
THROUGHOUT THE
DEVELOPMENTAL PROCESS.
>> WELL, IS THE BEST
INTEREST OF THE CHILD A
LEGAL TEST OR IS IT A
FACTUAL TEST?
>> IT'S THE FACTUAL
TEST, YOUR HONOR.
>> SO IT COULD BE
DIFFERENT IN EACH
CHILD'S INSTANCE?
>> YOUR HONOR, YES, IT
COULD.
WE WOULD BE HAPPY WITH
THE REMAINED IN THE
CASES TO THE TRIAL LEVEL
FOR THEM TO MAKE A
FACTUAL DETERMINATION AS
TO THE BEST INTEREST OF
THE CHILD.
>> TO GO BACK TO YOUR
PSYCHOLOGICAL ARGUMENT,
I MEAN, WOULDN'T
VISITATION ON THE PART
OF THE KELLERS REALLY
SATISFY THAT SAME
INTEREST YOU SAY ONCE
THEY HAVE DEVELOPED SOME
KIND OF BOND, THAT BOND
CAN CONTINUE THROUGH VIS
TALK, CAN'T IT?
>> POTENTIALLY, YOUR
HONOR, UNFORTUNATELY,
VISITATION IS NOT AN
OPTION DUE TO THE
DIFFICULTY MOTIONAL
NATURE OF THE EXCHANGE
BETWEEN THE PARTIES.
THE PARTIES HAVE ALREADY
IDENTIFIED THAT THEY
WOULD NOT BE WILLING TO
ALLOW FOR VISITATION IN
THIS SORT OF
CIRCUMSTANCE.
>> SO WE WOULD BE
CUTTING OUT THE
BIOLOGICAL PARENTS
TOTALLY?
>> ESSENTIALLY, YOUR
HONOR, YES, IT SEEMS
LIKE A VERY FIRM LINE TO
DRAW, BUT DUE TO THE
BOND THAT HAS BEEN
CREATED BETWEEN THE
PARENT AND THE CHILD
HERE, DUE TO THE
IRREFUTABLE, VERY
INFLUENTIAL BOND BETWEEN
KARON KELLER AN PATRICK
KELLER DURING HIS CARING
AND THE BIRTH OF HIM,
THOSE BONDS ARE DENIBL,
WE WOULD ASK TO PLACE
THE CHILD WITH THAT
FAMILY.
THANK YOU, YOUR HONOR.
>> THANK YOU.
>> PLEASE STATE YOUR
APPEARANCE.
>>> THANK YOU, CHIEF
JUSTICE.
MAY IT PLEASE THE COURT,
YOUR HONOR, ROBERT
POWELL FOR THE
PETITIONERS.
YOUR HONOR, THERE IS NO
QUESTION THAT THIS CASE
IS EMOTIONALLY-CHARGED
CASE THAT INVOLVE AS
TRAGIC SET OF
CIRCUMSTANCE, BUT THIS
COURT FORTUNATELY HAS
THE OPPORTUNITY TO
REMOVE EMOTION, APPLY
THE LAW TO THE FACTS OF
THIS CASE.
YOUR HONOR, A BOY NAMED
PATRICK WHO WAS CARRIED
IN THE WOMAN OF KARON
KELL WE'RE THE STOWE'S
GENETIC MATERIAL.
THE FIRST ISSUE INVOLVES
THE PARENTS OF THIS
CHILD.
YOUR HONOR, LET ME
CLARIFY THE OUTSET,
KELLERS ARE NOT SEEKING
MONEY HERE TODAY.
THEY WOULD LIKE TO PUT
THEIR SON HOME.
HOWEVER, AS IMPERFECT AS
IT MAY BE, THE REMEDY
THAT THE LAW PREVISED IS
REMEDY, NOT WHAT THE
KELLERS ARE SEEK, BUT IF
THIS COURT AFFIRMS THE
RULING OF THE SECOND
APPELLATE DIVISION,
AWARDS TO THE STOW STOWE
THEN THIS COURT SHOULD
REQUIRE COMPENSATION FOR
THE REASONABLE MEDICAL
EXPENSES THAT WERE IN
KURD GIVING BIRTH TO
THIS CHILD.
>> ISN'T IT -- WOULDN'T
THE APPROPRIATE
DEFENDANT IN THIS CASE
BE THE CLINIC?
I AM HAVING A DIFFICULT
TIME UNDERSTANDING A
THEORY OF LAW WHERE
NOBODY INTENDED FOR THIS
TO HAPPEN.
NOBODY WAS NEGLIGENT
OTHER THAN THE CLINIC.
WHY THERE WOULD BE
COMPENSATION TO YOUR
CLIENT BY THE RESPONDENTS.
>> YES, YOUR HONOR.
I HAVE NOTED ON PAGE 11
OF THE RECORD.
HELL KELLERS ACTUALLY
PURSUED THE CLINIC IN A
NEGLIGENT SUIT.
IT WAS DISMISSED DUE TO
THE FINANCIAL
INSOLVENCY, EVEN IF THEY
PREVEILED, YOUR HONOR,
THAT WOULD NOT CHANGE
THE FACT THAT THE
KELLERS WOULD CONFER TO
BENEFIT UPON THE TOES
INFORM OF MEDICAL
EXPENSES THAT THEY PAID
FOR.
>> ARE YOU TALKING ABOUT
THE NATURAL EXPENSES
THAT WOULD GO WITH ANY
CHILDBIRTH?
ARE YOU ALSO CONTENDING
THAT THEY SHOULD PAY FOR
THE EMOTIONAL PROBLEMS
THAT YOUR CLIENT HAS?
>> YOUR HONOR, THE
KELLERS ARE ONLY SEEKING
TO RECOVER THOSE
EXPENSES THAT WILL
CONFER TO BENEFIT UPON
THE STOWES,
SPECIFICALLY, THE
REASONABLE MEDICAL
EXPENSES ASSOCIATED WITH
THE PREGNANCY AND BIRTH
OF A CHILD.
>> WHAT ABOUT THE TIME
THAT SHE WAS OFF FROM
WORK, I BELIEVE IT WAS
ABOUT EIGHT WEEKS, SHE
WAS NOT COMPENSATED FOR
THAT?
THAT IS INCLUDED IN WHAT
YOU ARE ASKING FOR?
>> NO, YOUR HONOR, THE
KELLERS CONCEDE THAT DID
NOT CONFER A BENEFIT ON
THE STOWES.
NEVER MINE THE FACT THAT
KARON KELLER MISSED
EIGHT WEEKS OF WORK AS
SHE WAS BEDRIDDEN.
YOU CAN DISREGARD THE
FACT SHE HAD UTERUS
REMOVED, CAN NO LONGER
CARRY CHILDREN.
>> WHAT IS THE LEGAL
THEORY UPON WHICH YOU
ARE ATTEMPTING?
>> IT IS NOT JUST
ENRICHMENT, IT IS
INEQUITABLE DOCTRINE.
>> HAS IT BEEN APPLY
SNOOD NO, YOUR HONOR.
THE COMMON LAW ADOPTS
THE NEW FACTUAL
CIRCUMSTANCE, THE
SUPREME COURT ON THE
YEAR 2004 APPLIED UNJUST
EN ARE INMENT IN VERSUS
THE CENTER OF WINTER
PARK.
ALTHOUGH, THE FACTS OF
THAT CASE ARE
DISTINGUISHABLE, THE
CASE IS NOTEWORTHY FOR
THE ILLUSTRATION OF THE
ELEMENTS OF UNJUST
ENRICHMENT.
UNJUST ENRICHMENT
REQUIRE AS PARTY CONFER
A BENEFIT ON ANOTHER,
THAT THAT PARTY HAS
KNOWLEDGE AND
APPRECIATION OF THE
BENEFIT, UNDER
CIRCUMSTANCES SUCH THE
RETENTION WOULD BE
UNJUST WITHOUT PROVIDING
COMPENSATION.
YOUR HONOR, IN THIS
CASE, THE BENEFIT TOOK
THE FORM OF THE
REASONABLE MEDICAL
EXPENSES.
THERE IS NO DISPUTE IN
THE RECORD THAT THE
KELLERS FOOTED THE BILL,
THAT THE KELLERS IF THIS
COURT AWARDS TO THEM,
WILL HAVE AVOID THE
EXPENSE THEY HAVE
KNOWLEDGE AND
APPRECIATION OF THESE
EXPENSES BECAUSE THEY
FILED THIS SOLUTE, YOU
CANNOT SEPARATE THE --
>> BUT THE STOWES REALLY
HAVE NO SAY IN THIS.
THE STOWES ASKED THE
KELLER TO CARRY THIS
CHILD FOR THEM, THE
STOWES HAD NO KNOWLEDGE
THAT THIS WAS GOING ON,
SO I FIND IT VERY
DIFFICULT TO FIT THIS
KIND OF SITUATION INTO
UNJUST ENRICHMENT CLAIM.
>> YES, YOUR HONOR.
WHAT IS NOT REQUIRED BY
UNJUST ENRICHMENT,
REQUEST THE BENEFIT THAT
THE PARTY BE AT FAULT
FOR THE BENEFIT, IT
SIMPLY REQUIRE AS PARTY
CONFER A BENEFIT, THAT
THE RECEIVING PARTY HAD
KNOWLEDGE AND
APPRECIATION UNDER
CIRCUMSTANCES SUCH THAT
IT BE UNJUST TO RETAIN
IT WITHOUT COMPENSATION.
>> WELL, ON THE OTHER
HAND, I MEAN, THIS WAS
THE STOWE'S EGG AND
SPERM AND THEY AS I
UNDERSTAND WERE GOING TO
AT SOME POINT ON THE
FUTURE USE THIS
THEMSELVES AND NOW THEY
ARE WITHOUT THAT, THEY
ENTITLED TO SOME KIND OF
COMPENSATION BECAUSE
THEY NO LONGER HAVE A
SPERM AND EGG THAT THEY
CAN ATTEMPT TO IMPLANT
IN MRS. STOWE.
>> WELL, DOWNHOR YOUR
HONOR, IT IS OUR
POSITION THAT THE
APPROPRIATE ACTION THERE
WOULD BE AGAINST THE
FERTILITY CLINIC THAT
MADE THE MISTAKE.
THE SAME ONE THAT YOU
HAD AN ACTION AGAINST?
THAT US NOW INSOLVENT.
>> WELL, FOR ALL OF THE
MYRIAD OF COMPLICATIONS
THAT KARON KELLER
ENDURED, YES.
HOWEVER, IT WOULDN'T
CHANGE THE FACT THAT
THESE REASONABLE MEDICAL
EXPENSES WOULD HAVE BEEN
AVOIDED.
>> YOU KNOW, WE TALK
ABOUT THE COMMON LAW, OF
COURSE, THE WHOLE IDEA
OF SURROGATE PARENTAGE
WAS TO ENSURE THAT THEY
WOULD HAVE BEEN SHAKING
THEIR HEAD THINKING
THERE COULD BE SOMETHING
LIKE THIS.
MY CONCERN ABOUT THIS
IDEA OF THE UNJUST
ENRICHMENT HERE IS THAT
IT SEEMS THAT WE ARE
TAKING WHAT IS A GENUINE
MISTAKE, AND NOW WE'RE
TALKING ABOUT MONITORY
COMPENSATION AND HOW
MUCH MONEY ARE YOU
SEEKING?
WHAT ARE WE TALKING
ABOUT MONEYWISE?
>> YOUR HONOR, THE
RECORD IS SILENT AS TO
WHAT THE EXACT DOLLAR
AMOUNT IS.
IT WOULD BE APPROPRIATE
FOR COUNT ACCOUNTING
PURPOSES TO DETERMINE
WHAT THE PRECISE FIGURE
IS, BUT THE REASONABLE
MEDICAL EXPENSES THAT
ARE ASSOCIATED WITH
PREGNANCY, BIRTH OF THE
CHILD.
>> WHY?
WHAT WAS THE RULING OF
THE TRIAL COURT?
THEY NEVER GOT TO IT
BECAUSE THEY CONCLUDED
THAT THE CHILD WAS
YOURS?
>> YES, YES, YOUR HONOR.
DID YOU SEEK AS AN
ALTERNATIVE?
DID YOU SEEK UNJUST
ENRICHMENT?
>> YES, WE DID.
>> AND THEN IN THE
APPELLATE COURT, YOU
CONTINUED TO PRESERVE --
THE ISSUE WAS PRESERVED,
NO QUESTION ABOUT THAT?
>> THE APPELLATE COURT,
THEY REVERSED THE
SUMMARY JUDGMENT,
AWASHEDED PARENTAGE TO
THE STOWE, HELD THAT
THERE WAS NO DOUBT THAT
KELLERS CONFERED A
BENEFIT UPON THE STOWES
INFORM OF REASONABLE
MEDICAL EXPENSES, SO,
YES, YOUR HONOR, THEY
DID ACKNOWLEDGE THAT
BENEFIT HAD BEEN
CONFERED THAT THE
DOCTRINE WAS APPROPRIATE
TO APPLY TO THESE
CIRCUMSTANCES,.
YOUR HONOR, I
UNDERSTAND, THERE ARE
PUBLIC POLICY CONCERNS
ASSOCIATED WITH THIS
CASE.
THERE WAS NO SURROGATE
AGREEMENT IN THIS
SITUATION.
SURROGATE DENOTE AS
PROACTIVE CONTRACTUAL
AGREEMENT FOR AN
INDIVIDUAL TO HAVE A
CHILD ON BEHALF OF
ANOTHER FOR
COMPENSATION.
THERE WAS NO AGREEMENT
IN THE CASE.
THE PARTIES DIDN'T EVEN
MEET EACH OTHER UNTIL
AFTER THEY LEARNED THE
FERTILITY CLING MADE THE
MISTAKE.
>> AGAINST THE PUBLIC
POLICY OF THIS STATE?
>> NO, YOUR HONOR, THE
LEGISLATURE IN NEW SALEM
HAS YET TO SPEAK ON THE
ISSUE.
I WOULD URGE THIS COURT
NOT TO CONSTREW THEIR
SILENCE.
>> WELL, I THINK IT
WOULD DEPEND ON WHETHER
SOMEBODY IS BEING PAID
FOR CARRYING A CHILD AS
OPPOSED TO REASONABLE
EXPENSE ASSOCIATED WITH
HAVING A CHILD.
>> YES, YOUR HONOR.
AND THAT IS PRECISELY
WHAT WE ARE ASKING FOR.
WE'RE NOT REQUESTING
COMPENSATION FOR THE
SERVICES OF SURROGATE
SY, WE'RE SIMPLY ASKING
THAT THE KELLERS BE MADE
WHOLE IF THE STOWES ARE
AWARDED PARENTAGE ON THE
FORM OF COMPENSATING
THEM.
>> ANY EVIDENCE IN THE
RECORD AS TO WHETHER THE
KELLERS, WHETHER KARON
KELLER WAS ABLE TO, OR
IS IT THE STOWE, LET'S
SEE, YOUR CLIENT IS?
>> KARON KELLER.
>> OKAY.
WHETHER MISS STOWE WAS
ABLE TO KARA CHILD TO
GESTATION?
>> YOUR HONOR, THE
FAYETTEVILLE FERTILITY
CLING IM PLANTED SEVEN
DIFFERENT EMBRYOS IN THE
WOMAN, NOT A SINGLE ONE
SUCCESSFUL.
FURTHERMORE, THEIR
INSURANCE COMPANY
REALIZED THIS.
THEY HAD REFUSED TO
FINANCE ANY FURTHER IN
VITRO FERTILIZATION
ACTIVITY DUE TO THE
UNSUCCESS THUS FAR.
>> SO WE HAVE A
SITUATION WHERE BOTH OF
THESE WOMEN, ONE CAN NO
LONGER HAVE WITH
CHILDREN, THE OTHER ONE
NO LONGER HAS ANY
FERTILIZED EGGS TO HAVE
CHILDREN, AND SO, ANY
EQUITABLE WAY TO DEAL
WITH THIS CASE?
>> WELL, YOUR HONOR, THE
KELLERS ARE NOT RESPONSE
FOR THE STOWE'S NOT
HAVING ANYMORE EGGS.
AND --
>> WELL, THEY USED THE
ONES THAT THEY HAD.
>> YOU ARE RIGHT, YOUR
HONOR.
WILL DON'T THINK THERE
IS ANY EVIDENCE THEY
WOULD HAVE BEEN
SUCCESSFUL HAD THEY NOT
USED IT.
YOU CAN ARGUE THAT KARON
KELLER, PATRICK WOULDN'T
EXIST.
>> ON THIS FLIP SIDE OF
IT, THE STOWES ARE NOT
RESPONSIBLE FOR YOUR
CLIENT HAVING BECOME
PREGNANT AND HAVE A
CHILD.
>> EXACTLY RIGHT, YOUR
HONOR.
THAT WAS THE
FAYETTEVILLE FERTILITY
CLINIC THAT MADE A
MISTAKE.
THIS IS A CASE OF FIRST
IMPRESSION,
HISTORICALLY, THE
DOCTRINE IS ONLY APPLIED
TO IM AM NENT OBJECT BUS
THE GENIUS OF THE COMMON
LAW THAT IT ADOPTS TO
FACTUAL CIRCUMSTANCE IN
THIS CASE THE BENEFIT
TOOK THE FORM OF
REASONABLE MEDICAL
EXPENSES WE ASK THE
COURT AWARD THEM.
THANK YOU.
>> THANK YOU.
>> RESPONDENT.
>> MATE PLEASE THE
COURT.
MY NAME IS WILL HALL I
REPRESENT THE RESPONDENTS,
MATTHEW AN ELIZABETH
STOWE.
? I WILL SHOW WHY THE
STOWES ARE LEGAL PARENTS
OF PATRICK AN MY
COLLEAGUE PHILLIP ROGERS
WILL SHOW THE CLAIM IS
IN PROPER.
DOWNHORON, PATRICKS THE
FLESH AND BLOOD OF
MATTHEW AND ELIZABETH
STOWE.
HE THIS IS THE CHILD
THEY DREAMED ABOUT TO
START THEIR FAMILY, YOUR
HONOR, THE STOWE FAMILY
IS INCOP COME PLIGHT
RIGHT NOW.
THROUGH NO FAULT OF
THEIR OWN.
AS THE COURT RECOGNIZED,
AS THE COURTS FROM NEW
YORK TO CALIFORNIA AND
SIMILAR SITUATIONS HAVE
RECOGNIZED, THAT SHOULD
NOT BE THE CASE.
>> AREN'T THE PRINCIPALS
OF THE FAMILY LAW,
THOUGH, EQUITABLE
PRINCIPALS?
BOTH THE LEGISLATION
THAT IS PASSED AND THIS
COURT AND OTHER COURT'S
DECISIONS, AREN'T THEY
LARGELY BASED ON
EQUITABLE PRINCIPALS AS
OPPOSED TO STRICT LEGAL
RULES?
>> YOUR HONOR, TRULY NOT
ANYTHING EQUITABLE ABOUT
THIS CASE FOR EITHER OF
THESE FAMILIES.
>> HOWEVER, THE OUTCOME
OF THE CASE ISN'T IT
GOING TO HAVE APPEARANCE
THAT THERE WAS AN
INEQUITY TO ONE SIDE OR
THE OTHER?
>> YOUR HONOR, BOTH OF
THESE FAMILIES LOVE THIS
CHILD, BUT ONLY ONE CAN
BE THAT CHILD'S PARENT,
BUT PAT TRICKS THE BAY
OH LOGICAL CHILD OF
MATTHEW AN ELIZABETH
STOWE.
BOTH OF THESE FAMILIES
WENT TO THE FAYETTEVILLE
FERTILITY CLINIC HOPING
TO CREATE THEIR OWN
CHILD, BUT ONLY THE
BIOLOGICAL CHILD OF
MATTHEW AN ELIZABETH
STOWE HAS BEEN BORN.
>> WHY WELL, WHY ISN'T
THE BEST INTEREST TEST,
THE BEST TEST TO APPLY
IN THE SITUATION?
SINCE NEITHER PARTY IS
AT FAULT, THEN
SHOULDN'T, AT THIS
POINT, WE FOCUS RATHER
THAN ON SOME NOTION OF
CUSTODY AS IF THE CHILD
IS AN OBJECT AND LOOK
AND FOCUS ON THEIR BEST,
THE CHILD'S BEST
INTEREST?
>> YOUR HONOR, THE
REASON TEST DOES NOT
WORK IS PRECISELY
BECAUSE IT IS CUSTODY
CASE THE CASES IN WHICH
THE BEST INTEREST APPLY,
THE CASE SUCH AS BONJOUR
IN THE SUPREME COURT OF
ALASKA ARE CASES SUCH AS
DIVORCE, BITTER CUSTODY
BATTLES.
BUT WHY ISN'T IT -- THE
CONCEPT OF IT, AS
JUSTICE ANSTEAD WAS
SAYING AS FAR AS EQUITY
IS CONCERNED THAT THIS
CHILD IS NOW THREE YEARS
OLD.
WE KNOW THE LITERATURE
IS REPLEAT NOW WITH WHAT
HAPPENS TO CHILDREN 0 TO
3 THAT ARE RIPPED FROM
THE ONLY FAMILY THEY
KNOW.
THERE IS A SIGNIFICANT
PSYCHOLOGICAL IMPACT
CALLED DISTACHMENT
DISORDER.
HOW CAN YOU SAY IT IS
NOT AN APPROPRIATE TEST
TO LOOK AT?
LET THE TRIAL COURT MAKE
THAT CALL?
>> YOUR HONOR, THE BEST
INTEREST OF THE CHILD
SHOULD BE PARAMOUNT IN
THIS CASE.
ABSOLUTELY.
BUT THE TEST THAT BEST
TAKES THE BEST INTEREST
OF THE CHILD INTO
ACCOUNT FOR THESE TYPES
OF CASES IS THE INTENT
TEST, RECOGNIZING THAT
THE INTENT TO CREATE A
CHILD CORRELATES WITH
THAT CHILD IN A TRES.
>> THAT IS YOUR OPPONENT
THAT MAKES THE POINT
WHICH SEEMS TO ME TO
HAVE FORCE OF LOGIC THAT
BOTH OF THESE COUPLES
INTENDED TO HAVE A
CHILD, AND SO, DOESN'T
THE INTENT TEST CANCEL
ITSELF OUT?
>> NO, YOUR HONOR, IT
DOES NOT.
IT IS TRUE THAT BOTH OF
THESE FAMILIES WISH TO
HAVE A CHILD.
BUT --
>> WELL, THEY DID MORE
THAN WISHED.
THEY TOOK STEPS.
AND INVOLVED THE SAME
CLINIC.
>> THE KELLERS TOOK
THOSE STEPS TO HAVE
THEIR OWN BIOLOGICAL
CHILD.
THEY DID NOT GO AND SAY
ASK AND FOR A DONOR
EMBRYO.
>> BUT SO DID YOUR
OPPOSITION.
THEY DID THE SAME THING.
DID THEY NOT?
>> ABSOLUTELY, YOUR
HONOR.
THE INTENT TEST SAYS
THOSE WHO INTEND TO
CREATE THIS SPECIFIC
CHILD ARE THAT THAT
CHILD'S PARENT ONLY THE
STOWES HAVE INTENT TO
CREATE THIS SPECIFIC
CHILD.
>> THAT SOUNDS LIKE,
AGAIN, AS I MENTIONED,
THAT IS A CONTRACTUAL
CONCEPT.
THE INTENT OF THE
PARTIES HOW TO APPLY
THAT YOU ADMIT OR AGREE
THE BEST INTEREST IS
WHAT SHOULD CONTROL.
I DON'T SEE HOW SOME
CONTRACTUAL CONCEPT FITS
INTO BEST INTEREST OF
THE CHILD.
>> YOUR HONOR, THAT TEST
HAS BEEN USED IN CASES
INVOLVING IN VITRO
FERTILIZATION MIXUP, THE
CASE, PERRY ROGERS FROM
THE NEW YORK APPELLATE
COURTS THE COURT SAID IF
IT HAD TO DECIDE, IT
WOULD GO WITH THE
GENETIC COUPLE WHO
INTENDED TO CREATE THAT
SPECIFIC CHILD AS
OPPOSED TO THE GESTATIONAL
COUPLE WHO HAD THAT
CHILD'S BABY BASED ON
FERTILIZATION MIXUP,
THIS HAS BEEN DEA SIDED
IN CASES.
>> DOES IT MATTER WHEN
THE, WHEN THE ERROR IS
DISCOVERED?
DOES IT MATTER IF IT WAS
DISCOVERED THE DAY THAT
THE MOTHER GIVES BIRTH?
OR IF IS IT DISCOVERED
TEN YEARS LATER IN DOES
THAT MATTER AT ALL,
TIME?
>> YES, YOUR HONOR.
>> BUT IF YOU SAY
INTENT, IT SHOULDN'T
MATTER BECAUSE THE
INTENT WAS ALWAYS THE
SAME.
IT SHOULD NEVER CHANGE
THEN.
>> THE INTENT WOULD BE
THE SAME, YOU ARE RIGHT,
YOUR HONOR, IF WE WERE
DEALING WITH A 16-18-YEAR-OLD
CHILD, IT WOULD BE
IMPOSSIBLE FOR THAT
CHILD TO FORM A NEW BOND
WITH BIOLOGICAL PARENTS.
>> WELL, THEREFORE, IF
THE YEARS MATTER, THEN,
YOU ARE AGAIN AGREEING
THAT SOME TYPE OF BEST
INTEREST ANALYSIS IS THE
APPROPRIATE TEST TO USE.
>> YOUR HONOR, THIS
COURT ABSOLUTELY SHOULD
TALK THE BS'S INTEREST
INTO ACCOUNT, BUT THE
INTENT TEST DOES, THAT
IN THE BEST INTEREST OF
THE CHILD AS IT HAS
BEENED A VOW CATED
STATES DESIRE TO EACH
PARENT TO ALLOW THE
CHILD TO SEE THE OTHER.
THAT IS JUST IN APLICKABLE
TO THIS SITUATION.
>> WHY WOULDN'T IT?
WHY IS IT SO
INAPPLICABLE.
I MEAN, YOUR CLIENT, I
ASSUME, WOULD NOT AGREE
TO ANYTHING THING --
COULDN'T WE FASHION A
REMEDY SUCH AS SHARED
PARENTING HERE OR ONE
COUPLE HAS RIGHTS AND
VISITATION, THAT MIGHT
SATISFY BOTH OF THESE
COUPLES WHO NOW DON'T
HAVE AN OPPORTUNITY TO
HAVE OTHER CHILDREN.
WHY COULDN'T -- WHY
ISN'T THAT A FAIR AND
EQUITABLE THING TO DO
HERE?
>> YOUR HONOR, THE MOST
PART OF THIS CASE IS NOT
WHAT IS FAIR TO PARENT,
IT IS WHAT IS FAIR TO
THE CHILD?
IN THE BEST INTEREST ARE
SERVED WHEN BIOLOGICAL
PARENTS --
>> WHY WOULDN'T IT
SERVICE THE BEST
INTEREST OF THE CHILD?
THE CHILD HAS ALREADY
FORMED A BOND WITH THE
KELLERS, BUT THE CHILD
CERTAINLY IN THE FUTURE
WOULD HAVE AN INTEREST
UNKNOWING THE BIOLOGICAL
PARENTS AND WHETHER
THESE PARENTS WANTED HIM
AND THOSE KINDS OF
ISSUES SO WHY WOULDN'T
IT ALSO BE IN THE BEST
INTEREST OF THE CHILD
FOR THAT THE KIND OF
SHARED PARENTING
ARRANGEMENT?
>> YOUR HONOR, THE BEST
INTEREST -- THE MOST --
THE BEST WAY TO COME OUT
OF THIS CASE WOULD BE
FOR ONE SET OF PARENTS
TO BE PATRICK'S PARENTS
THAT WOULD BE THE STOWES.
>> FOR YOUR CLIENT.
>> YOU KNOW, I AM SAYING
YOU ARE AN ADVOCATE, I
KEEP THINKING REMEMBER
THE STORY OF SOLOMON
WHERE THE BABY, HE SAID
HE WOULD CUT THE BABY IN
HALF AND THE TRUE
PARENTS SAID NO.
I AM CONCERNED THAT THE
PARTIES HERE HAVE BECOME
SO CONSUMED IN THEIR OWN
EGOES THAT THEY HAVE
FORGOTTEN THAT A
SOLUTION HERE WOULD BE
ONE THAT IS MEDIATED TO
SEE WHETHER THERE COULD
NOT BE SOMETHING LIKE AN
OPEN ADOPTION WHERE BOTH
SETS OF PARENTS HAVE A
ROLE IN THE LIFE OF THIS
CHILD.
>> YOUR HONOR, THIS IS
NOT ABOUT THE STOWE'S
EGO, THE STOWE'S, IT HAS
BEEN DIFFICULT TO KNOW
THAT THE CHILD THEY
DREAMED ABOUT HAS BEEN
RAISED BY ANOTHER COUPLE
FOR THREE YEARS, BUT THE
STOWES MOVED AS SWIFTLY
AS POSSIBLE TO GAIN
PARENTAGE OF THE CHILD,
ALL OF THE BONS THAT HAS
TAKEN PLACE IS A RESULT
OF THE LITIGATION OF
THIS CASE.
IF THE COURT SAID SUCH
BONDING, IT WOULD BE
LEAVING BIOLOGICAL
PARENTS WITH NO LEGAL
RECOURSE.
EVEN IN CASES OF BAD
FATH, IF THE BONING HAS
OCCURRED, THE CHILD
WOULDN'T KNOW IF THEY
HAD BEEN SWITCHED, SO
EVEN FOR CHILD THIS
YOUNG, WHEN THE NEW YORK
FAMILY COURTS IN 2006
SAID THAT A TWO AND A
HALF-YEAR-OLD CHILD WHO
HAD BEEN RAISED BY AUNT
AN UNCLE COULD BE
REUNITED WITH BIOLOGICAL
PARENTS EVEN AFTER THAT
LENGTH OF TIME, YOUR
HONOR, TO SAY THAT WOULD
HAVE IMPLICATION ON THIS
STATE, WOULD SEAT BAD
PRECEDENT.
>> LET ME ASK YOU THIS
-- OTHER THAN THE
BONDING FOR THE PERIOD
OF TIME, ARE THEIR OTHER
INGREDIENTS WHAT COULD
BE THE LEGAL TEST OF THE
BEST INTEREST OF THE
CHILD THAT WOULD BE
FAVOR THE STOWES?
>> ABSOLUTELY, YOUR
HONOR.
>> WHAT ARE THOSE?
>> BAY OHOLOGY IS ONE OF
THOSE AS JUSTICE ANSTEAD
SAID.
THIS IS A CHILD THAT
WILL LIKELY LOOK LIKE
THE STOWE, WILL SHOW
THEIR MEDICAL HISTORY.
WE PUT PARENTS ON THE
SCALE, THOSE WHO ARE
MOST ETHIC A.M., ATTEND
RELIGIOUS SERVICES THE
MOST SHOULD ARAISE THE
CHILDREN.
NOW, CERTAINLY, THIS IS
THE CASE, IT IS A CASE
WHERE THE HEART STRINGS
COULD BE PULLED IN
EITHER DIRECTION BUT
YOUR HONOR, AS THE LAW,
THE PUBLIC LAW FOR THIS
STATE, THAT IS THAT THE
STOWES ARE PARENT PAT
TRUCK'S LEGAL PARENTS.
AS THE LOWER COURT, THE
COURTS FROM NEW YORK, TO
THE SUPREME URT OF
CALIFORNIA HAVE
RECOGNIZED THAT SHOULD
NOT BE THE CASE.
>> THANK YOU.
THANK YOU.
>> SECOND RESPONDENT,
PLEASE.
>> THANK YOU, YOUR
HONOR.
MAY IT PLEASE THE COURT,
MY NAME IS PHILLIP
ROGERS I REPRESENT
RESPONDENTS ELIZABETH AN
MATTHEW STOWE.
YOUR HONOR, IT DID NOT
COME AT THE HANDS OF
MR. AND MRS. STOWE BUT
OF THE FAYETTEVILLE
FERTILITY CLINIC.
IT IS IMPOSSIBLE NOT TO
BE SYMPATHETIC FOR THEM.
THEY ARE ASKING THIS
COURT TO SUPPLY UNJUST
ENRICH AM.
>> THEY ARE ASKING FOR
ARE THE HOSPITAL, THE
HOSPITAL EXPENSE, THEY
ARE NOT ASKING FOR THE
PSYCHOLOGICAL COUNSELING
AND CERTAINLY IF YOU HAD,
IF LEGAL CUSTODY IS
RETURNED TO YOUR CLIENTS
AND NO EVIDENCE THAT
YOUR CLIENTS WERE ABLE
TO ACTUALLY KARA CHILD
TO -- CARRY A CHILD TO
BIRTH THEN HOW US THE
PUBLIC POLICY NOT SERVED
BY ALLOWING THEM TOLL
AAT LEAST RECOVER THE
EXPENSES FOR THE MEDICAL
EXPENSES?
THAT SEEMS PRETTY
REASONABLE TO ME.
>> THERE IS NO QUESTION
THAT THEY ARE OWED
COMPENSATION.
THERE IS NO QUESTION
THAT THE APEL ANS HAVE
BEEN HARMED
INSUBSTANTIAL WAYS.
I THIS IS REMEDY THAT
THEY SEEK.
>> I GUESS I AM LOOKING
MAYBE GOING TO BE
OVERREACHING UNSAYING
THAT THEY WANT TO
RECEIVE COMPENSATION
BECAUSE SHE CAN'T HAVE
ANOTHER CHILD.
SIGNIFICANT HARM.
BUT ALL THEY ARE ASKING
FOR ARE THEIR, I WOULD
ASSUME, REASONABLE
MEDICAL EXPENSES
CONNECTED WITH THE
BIRTH, WOULDN'T THAT,
AGAIN, RATHER THAN
HAVING THIS COURT
LITIGATE THAT, WOULDN'T
THAT BE SOMETHING YOU
ALL SHOULD BE ABLE TO
WORK OUT AMONG
YOURSELVES IF THE FIRST
ISSUE WAS DECIDED?
I REALIZE, THAT DOESN'T,
YOU KNOW, GO, BUT WE ARE
HERE REALLY LOOKING AT
EQUITABLE YOU SHALL
SURE, NOT LEGAL ISSUES.
>> SURE.
>> AND THAT IS THE
ISSUE, YOUR HONOR.
THERE IS NOTHING JUST OR
EQUITABLE ABOUT IMPOSING
ANY PART OF THIS
SUBSTANTIAL LIABILITY ON
MRS. AN MRS. STOWE.
THEY ARE A PARTY WHO
LESS WE FORGET WHO HAS
ALSO SUFFERED TERRIBLY
THROUGHOUT THIS ORDEAL.
>> MAYBE I AM NOT --
MAYBE I AM MISSING
SOMETHING.
YOUR CLIENT DIDN'T -- IF
THEY OBTAINED CUSTODY,ED
INTO EXPENSES CONNECTED
WITH BIRTH OR ANYTHING
THEREAFTER AND ALL THEY
ARE SEEKINGING THEIR
MEDICAL EXPENSE HOW IS
THAT, YOU KNOW, A
WINDFALL OR SOME KIND OF
TREMENDOUS DETRIMENT TO
YOUR CLIENT?
>> WELL, I MEAN, WE
DON'T KNOW HOW MUCH
MONEY IS BEING ASKED.
I MEAN, IT IS NOT
REFLECTED IN THE RECORD,
PRESUME BLIT IS TENS OF
THOUSANDS OF DOLLARS.
SUBSTANTIAL SUM OF
MONEY.
>> TO GIVE BIRTH TO A
CHILD.
>> A COMPLICATED BIRTH
DONE BY C-SECTION.
IT IS NOT SOMETHING WE
CAN SAY FOR CERTAIN.
WHAT WE DOE KNOW,
THOUGH, THAT MRS. AN
MRS. STOWE HAVE SUFFERED
TERRIBLY THROUGHOUT THE
SITUATION, THEY MISSED
OUT ON THE OPPORTUNITY
TO CARRY THEIR SON, THEY
MISSED OUT ON THE CHANCE
TO SELECT PRENATAL CARE,
THE METHOD OF BIRTH.
>> WHY DOESN'T THE YOUR
OPPONENT'S THE RIFF
UNJUST ENRICHMENT, WHY
DOWN THE THAT APPLY
HERE?
>> IT DOES APPLY BECAUSE
IT IS, AS YOU SUGGESTED,
A REMEDY BORN INEQUITY.
>> WELL, BUT, LET ME ASK
YOU, WHAT, WHAT ARE THE
ELEMENTS OF UNJUST
ENRICHMENT?
>> SURE.
>> IF WE TAKE THE
ELEMENTS OF UNJUST
ENRICH RESPECT, FORCE
THEM ON THE FACTS HERE,
IT STILL FAILS.
>> WHAT ARE THE
ELEMENTS?
>> FIRST IS THE BENEFIT,
YOUR HONOR.
A BENEFIT OF WHICH THE
PARTY RECEIVED HAD
KNOWLEDGE.
MRS. AN MRS. KELLER DID
NOT KNOW THAT SOMEBODY
ELSE WAS CARRYING THEIR
CHILD.
THEY DIDN'T KNOW THAT
SOMEBODY ELSE WAS PAYING
THESE EXPENSES THAT THEY
ARE BEING ASKED POR.
THIS IS SOMETHING THAT
HAS BEEN APPLIED
STRICTLY IN MANY
JURISDICTIONS THROUGHOUT
THE COUNTRY.
>> BUT YOU CAN NOT
IGNORE -- IT SEEMS TO
ME, IT IS HARD FOR A
COURT TO IGNORE THAT IF
YOUR CLIENT HAS THE
CUSTODY OF THE CHILD FOR
REASON OF THE FACT THAT
THE COURT HAS DETERMINED
THAT THAT WOULD BE IN
THE BEST INTEREST OF THE
CHILD, IT WOULD BE
UNLIKE ANY OTHER BIRTH
THEN AND THE PARENT
SHOULD BEAR THE COST OF
THE DELIVERY, WHAT, THAT
IS A BENEFIT, ISN'T IT?
>> IT CERTAINLY A
BENEFIT THAT HAS BEEN
RECEIVED, BUT THE REAL
DANGER IS HERE EXPANDING
ON IN JUST ENRICHMENT.
THIS IS THE REAL DANGER
IN OUR JURISDICTION T.
THIS IS NOT APPROPRIATE
SET OF CIRCUMSTANCES FOR
UNJUST EN ARE RICHMENT
TO APPLY.
>> IT SEEMS TO ME THAT
THE KELLERS REALLY HAVE
A CLAIM FOR EVEN MORE
THAN JUST ORDINARY
HOSPITAL EXPENSES, WHAT
ABOUT ALL OF THE
EXPENSES THAT THEY HAVE
UNCURED OVER THE PAST
LEE YEARS IN RAISING
THIS CHILD?
IT SEEMS TO ME THAT JUST
ASKING FOR THE COST OF
ASSOCIATED WITH THE
BIRTH OF THE CHILD IS
TRULY REASONABLE.
SO I AM STILL AT A LOSS
AS TO WHY, WHETHER YOU
CALL IT UNJUST
ENRICHMENT OR SOME
OTHERER THAT RY OF LAW
OR EK YOU CAN EQUITY
THAT THEY ARE NOT AT
LEAST ENTITLED TO THAT.
>> THERE IS NO QUESTION
THEY ARE ENTITLED TO
COMPENSATION.
BUT NOT FROM THE STOWES.
CERTAINLY NOT THROUGH
THIS REMEDY.
IF WE ARE GOING --
>> BUT THE STOWES, THE
PROBLEM I THE STOWES ARE
THE PEOPLE WHO WILL HAVE
THE BENEFIT OF WHAT
MRS. KELLER WENT
THROUGH.
>> THE BENEFIT THEY HAVE
ACCEPTED WHAT THEY ARE
TAKING INTO THE HOME IS
PATRICK.
THE FACT THAT THESE
TANGIBLE ECONOMIC
BENEFITS ARE NECESSARILY
TIED TO HIM IS SOMETHING
THAT THEY HAVE NO
CONTROL OVER.
IT IS NOT A BENEFIT THEY
VOLUNTARILY TAKEN ON, IT
IS NOT ONE THAT THEY
WANTED.
IT SEEMS TO ME THAT YOUR
RESPONSE ON BEHALF OF
THE CLIENT IS SORT OF,
THAT IS JUST TOUGH,
VERY, VERY HARD RESPONSE
HERE.
HOW CAN WE SPOSBLY WRITE
AN OPINION SHOULD WE GO
IN THE DIRECTION THAT
YOU ALL RECEIVED THE
CHILD.
JUST SAY TO SOMEBODY
THAT HAS CARRIED A CHILD
TO TERM AND JUSTICE
QUINN SAID, THEN HAS
SUPPORTED THAT CHILD IN
SO MANY WAYS AFTERWARDS
THAT, WELL, I AM SORRY,
THAT IS TOUGH.
HOW COULD WE WRITE AN
OPINION THAT SAID THAT
AND HAVE THAT BE THE LAW
OF THIS JURISDICTION?
>> THIS IS HEARTBREAKING
SET OF CIRCUMSTANCES.
IT IS ABSOLUTELY
STAGGERING.
COMPLETELY UNSEN THAT
THE KELLERS ARE GOING TO
GO UNCOMPENSATED THAT
DOESN'T MAKE --
>> DON'T THE END OF THE
RESULT OF THIS END UP
YOUR CLIENTS REALLY ARE
DEVALUING THE VERY CHILD
THAT THEY ARE SEEKING TO
HAVE?
THAT IS THAT THEY ARE
SAYING, WELL, YOU KNOW,
THE SURROGATE PARENT
GOING THROUGH TERM AND
SUPPORTING THIS CHILD
AND EVERYTHING, NO
VALUE, DOESN'T THAT
REALLY SEND OUT QUITE A
NEGATIVE SIGNAL HERE IN
SO FAR AS YOUR CLIENTS
VIEW OF THE VALUE OF
THIS CHILD?
>> NO, YOUR HONOR.
THERE IS NO QUESTION
THAT WHAT US THE MOST
IMPORTANT THING HERE IS
PATRICK, THAT PATRICK GO
HOME WITH THE FLESH AND
BLOOD, PROPER FAMILY,
BUT THE REAL DANGER,
WHAT WE'RE SEEKING TO
PREVENT IS
MISAPPLICATION OF UNJUST
ENRICHMENT IN THE
FUTURE, EXPANDING IT IN
THIS WAY TO A FACTUAL
SITUATION THAT IS NO SO
DISTINCT, THIS IS NOT A
UNIQUE FACTUAL SITUATION
THAT WE'LL NOT SEE IT
AGAIN.
>> HOW DO YOU IMAGINE
THAT THIS CHILD WOULD
FEEL AFTER THE CHILD
BECOMES OF AGE OR
WHATEVER AND LEARNS THAT
YOUR CLIENTS ASUING THAT
THEY HAVE LEGAL CUSTODY
OF THE CHILD, THEY HAVE
LEARNED THAT THEIR
PARENTS DEA NIED
COMPENSATION TO THE
PEOPLE THAT CARED FOR
THAT CHILD SO MUCH,
DON'T YOU THAT I THAT
CHILD NOW AN ADULT WOULD
BE APPALLED THAT THEIR
PARENTS WOULD TAKE THAT
ATTITUDE TOWARD THE
PERSON THAT ACTUALLY
BROUGHT THEM INTO LIFE.
>> NO, YOUR HONOR, I
DON'T THINK SO AT ALL.
I THINK THE REMEDY THAT
IS BEING SOUGHT US
APPROPRIATE.
I THINK IT IS APPALLING
THIS THE KELLERS WILL
KNOB RECEIVING
COMPLICATION.
>> YOU ARE TALKING ABOUT
COMPENSATION AS IF
SOMEHOW ANYTHING THAT
THE MONEY COULD DO COULD
REPAIR THIS SITUATION?
YOU SAY IT IS A TRAGEDY.
WELL, IT WAS MIXUP, BUT
FORTUNATELY, A AT THE
THINK CHILD WAS BORN.
A HEALTHY CHILD WAS
BORN.
YOUR CLIENTS ARE SEEKING
CUSTODY.
IT IS UNDENIABLE IN THE
DAY AND AGE, IT MAY HAVE
BEEN 2,000 YEARS AGO
POSSIBLE, NOW WITH WAY
TO HAVE A CHILD WITHOUT
GOING THROUGH PAIN AND
EXPENSE.
AND WHAT YOUR CLIENTS
ARE SEEK IS THAT "HAVE
THE CHILD" AND NOT HAVE
TO PAY ANY EXPENSES
CONNECTED WITH HAVING
THE CHILD.
I THINK THAT TRULY WOULD
BE AGAINST PUBLIC
POLICY.
I AM STILL HAVING
TROUBLEUND ERRED
STANDING IF EQUITY IS
WHAT WE SHOULD BE DOING
WHY EQUITY WOULDN'T
REQUIRE THAT THE MEDICAL
EXPENSES AT THE VERY
LEAST BE COVERED.
JUST GIVE IT YOUR BEST
SHOT AGAIN.
>> BECAUSE PAULTLY, BOTH
PARTIES HAVE SUFFERED
TERRIBLY.
BOTH PARTIES HAVE
BENEFITED AS WELL.
THAT IS WHAT WE HAVE TO
DO.
WE HAVE TO LOOK AT THE
TOTALLYTIVE THE
CIRCUMSTANCE.
>> WHAT BENEFIT DOES THE
KELLERS NOW HAVE?
I MEAN, ASSUMING WE GIVE
CUSTODY TO YOUR CLIENT,
WHAT IS THE BENEFIT THAT
THE KELLERS HAVE GOTTEN
OUT OF THIS?
>> THEY HAD THE FIRST
THREE YEARS OF PATRICK'S
LIFE.
THEY HAD THE OPPORTUNITY
TO SEE HIM TAKE THE
FIRST STEP, SAY HIS
FIRST WORD, THEY HAD THE
OPPORTUNITY TO WATCH HIM
GROW IN A TODDLER, INTO
A YOUNG MAN HE IS TODAY.
THIS IS AN OPPORTUNITY
THAT MR. AN MRS. STOWE
HAVE MISSED OUT ON, A
TRAGIC LOSS THAT THEY
WILL NOT BE ABLE TO MAKE
UP FOR.
ACCORDINGLY, WE ASKED
THAT YOU REVERSE THE
AWARD OF MONEY DAMAGES.
>> THANK YOU.
THANK YOU.
>> THANK YOU.
THANK BOTH COUNSEL, KOUR
COUNSEL FOR BOTH PARTIES
FOR ARGUMENT AND THE
COURT WILL NOW GO INTO
DELIBERATION BRIEFLY AND
THEN WE WILL RETURN IN A
BRIEF TIME WITH A FEW
COMMENTS.
THANK YOU.
>> ALL RISE.,,,,
THE COURT IS NOW IN
RECESS.,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,
ALL RISE.
>> THE FLORIDA SUPREME
COURT IS BACK IN
SESSION.
PLEASE BE SEATED.
>>> WELL, IT IS THE
OPPORTUNITY FOR THE
COURT TO MAKE COMMENTS
CONCERNING THE
PRESENTATION AND WE
FIRST ON BEHALF OF THE
COURT, I WOULD SAY THAT,
TELL YOU EACH THAT WE'RE
APPRECIATIVE OF YOUR
HARD WORK AN OF YOUR
COMING HERE AN ALLOWING
US TO BE THE JUDGES FOR
YOU AND TO -- SO WHAT WE
DO IN CIRCUMSTANCES LIKE
THIS IS THAT WE ASK ONE
OF OUR MEMBERS HEF COURT
TO MAKE FURTHER COMMENTS
AND JUSTICE QUINCE IS
GOING TO TALK OFTEN WITH
YOU AT THIS TIME.
>> AND I ALSO WANT TO
THANK YOU FOR YOUR
ARGUMENTS HERE TODAY AND
THIS WAS AN INTERESTING
BUT DIFFICULT, I THINK,
QUESTIONS OR QUESTION TO
DEAL WITH AND SO WE
APPRECIATE THE EFFORT
THAT ALL OF YOU PUT IN
ON THIS QUESTION.
AND WHAT I REALLY FOUND
INTERESTING ABOUT YOUR
PRESENTATIONS IS THAT WE
ASK A LOT OF QUESTIONS
THAT REALLY DIDN'T
INVOLVE LAW PER SE AND
THERE IS NOT A LOT OF
LAW ON THIS QUESTION --
ON THESE QUESTIONS, AND
SO YOU HAD TO REALLY
KIND OF THINK ON YOUR
FEET ABOUT POLICY ISSUES
INVOLVED IN THESE TWO
QUESTIONS AN YOU DID
REALLY, I THINK, A VERY
GOOD JOB.
I THINK ALTHOUGH THE
RESPONDENTS HAD ONE IN
THE INTERIMMEDIATE
APPELLATE COURT, YOU HAD
A REALLY DIFFICULT ISSUE
TO DEAL WITH ESPECIALLY
ON THE ISSUE OF
COMPENSATION AND YOU
KNOW QUITE OFTEN WHEN
YOU HAVE THESE DIFFICULT
ISSUES IN REAL LIFE, WE
NEED TO HAVE SOME ROOM
FOR SOME COMPROMISE AN
CONCESSIONS SOMETIMES.
AND SO IT IS VERY HARD
TO REALLY TAKE THE SORT
OF ABSOLUTEIST POSITIONS
AND THOSE KIND OF ISSUES
AND ON THE PETITIONER'S
SIDE, IT SEEMS TO ME
THAT YOU HAVE SOME VERY
DIFFICULT ISSUES ON THE
FIRST ONE, BECAUSE THESE
PEOPLE WERE IN FACT THE
BIOLOGICAL PARENTS OF
THE CHILD AND WE ALL
KNOW THAT BIOLOGICAL
PARENTS HAVE REALLY SOME
VERY STRONG
CONSTITUTIONAL AND
PERSONAL RIGHTS TO
CHILDREN AND SO I
APPRECIATED THE FACT
THAT YOU COULD DEAL WITH
THE PUBLIC POLICY ISSUES
INVOLVED IN THIS KIND OF
CASE AND SO THANK YOU
BOTH SIDES FOR YOUR
PRESENTATIONS.
[APPLAUSE]
>> AND WE EACH
CONGRATULATE EACH ONE OF
YOU FOR BEING THE
WINNERS THAT YOU ARE AND
BEING HERE AT THIS POINT
OF THE COMPETITION, SO
WITH THAT, THE COURT
WILL BE IN RECESS.
>> ALL RISE.
THANK YOU.
CONGRATULATIONS.
[LOW AUDIO