Perry Rogers v. Fasano

276 A.D.2d 67 (2000)

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Nature of the Case

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Facts

Perry-Rogers and Robert Rogers (Ps) began an in vitro fertilization and embryo transfer program with the In Vitro Fertility Center of New York. Embryos of Ps' genetic material were mistakenly implanted into the uterus of Donna Fasano (D), along with embryos from D's and her husband's genetic material. Both couples were notified of the mistake and the need for DNA and amniocentesis tests. D gave birth to two male infants, of two different races. One, a white child, D's biological child, named Vincent Fasano. The other, initially named Joseph Fasano, is a black child, who subsequent tests confirmed to be Ps’ biological son, now known as Akeil Richard Rogers. Ps sued D for a declaratory judgment and the fertility clinic for medical malpractice and breach of contract. Ps were the genetic parents of Akeil. Ds agreed to relinquish custody of Akeil only upon the execution of a written agreement, which entitled Ds to future visitation with Akeil. During the period between Akeil's birth on December 29, 1998, and May 10, 1999, Ds only permitted her two brief visits with Akeil, and that she felt compelled to sign the agreement in order to gain custody of her son. The agreement, executed April 29, 1999, contains a visitation schedule providing for visits one full weekend per month, one weekend day each month, one week each summer, and alternating holidays. The agreement also contained a liquidated damages clause, providing that a violation of the Fasanos' visitation rights under the agreement would entitle them to $200,000. Counsel for the parties signed a stipulation discontinuing with prejudice the plenary action as against Ds. Ps then served a petition seeking a declaratory judgment against Ds, naming the Ps as Akeil's legal and biological parents, granting them sole and exclusive custody, and permitting them to amend the birth certificate to reflect Akeil's biological heritage. It made no mention of the April 29, 1999 visitation agreement. Ds submitted no opposition to the application, and the court granted the application without opposition. Ds then sought vacatur on the grounds that Ps had failed to inform the court of the April 29, 1999 agreement, which they contended was a condition precedent to the signing of an order. The court signed an order that permitted Ds visitation. Ps now challenge the court's January 14, 2000 visitation order.