Casey Surrogate Baby Case Takes another Twist

By Liz Maples, The Advocate-Messenger, KY
October 27, 2005

A Massachusetts court has been asked to decide who are the legal parents of a baby a Casey County woman is carrying for another couple.

Arletta Bendschneider of Casey County is in Massachusetts and plans to give birth to a boy at Cape Cod Hospital in Hyannis, Mass.

She is the surrogate mother of the baby and is not biologically related to him. The biological parents are Jackie Mitchard, “Deep End of the Ocean” novelist, and her husband, Christopher Brent.

Bendschneider’s husband, Jack Bendschneider, has filed for divorce in Casey County and refuses to sign a prebirth order that will terminate his paternal rights to the child.

His attorney, Ted Lavit, said Jack Bendschneider has no intentions of signing a prebirth order or anything else that indicates he is not the father of the baby, but also does not claim to be related to the baby.

Lavit said, “He is just interested in his children … caring for and making a home for his children.”

Jack Bendschneider has sole temporary custody of his and his wife’s two young children. Casey Circuit Judge James G. Weddle ruled that he cannot make Jack Bendschneider sign a prebirth order. However, Jack Bendschneider has said in court that he is not the father of the baby his wife is carrying for the Massachusetts couple, and that he wants “nothing more to do” with the surrogate pregnancy.

Mitchard and Brent’s attorney, Melissa Brisman, who practices in Massachusetts, said while Jack Bendschneider’s decision makes “emotional sense,” it does not make “legal sense.”

“He’s making it more difficult for himself and for everyone else,” Brisman said in a telephone interview Wednesday.

Brisman is asking the court to prevent the hospital from issuing a birth certificate until after it has determined who are the legal parents. If the court determines Mitchard and Brent are the legal parents, they will not have to adopt their own child, according to Brisman.

In 2001 Brisman was successful in convincing the Massachusetts Supreme Judicial Court to put the names of the biological parents, not the surrogate mother, on a baby’s birth certificate. She was also successful doing the same thing in Maine for her own surrogate baby.

This case is unusual, Brisman said, because although Jack Bendschneider is not contesting the action, he is not consenting to it either.

Brisman will not be assisting Arletta Bendschneider in her custody battle. She said she is not familiar with Kentucky law, but she said Weddle’s custody decision would have been unusual on the East Coast.