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Judge Awards Custody to Dad in Bizarre Surrogate Mom Case

September 10, 1993

CENTRAL ISLIP, N.Y. (AP) _ A judge on Friday awarded a 4-month-old boy to the baby’s father in a case in which the man had sex with the surrogate mother rather than using artificial insemination.

Judge David Freundlich said in his ruling in Suffolk County Family Court that it was the predisposition toward violence of the surrogate mother’s husband that led him to give custody to Joseph Kaplan.

Susan Chamberlain, who gave birth to the boy in May, was given the right to visit the child every other weekend, some holidays and part of each summer.

″It’s indescribable,″ said a joyous Joseph Kaplan, 43, clutching his fair-haired, blue-eyed son outside the courthouse. ″It’s the finalization of all our dreams. I feel like flying.″

The baby called Benjamin by the Kaplans, and Shane by the Chamberlains, became the object of a tug of war four months after he was conceived.

At 50, Jean Kaplan is infertile. So Mrs. Chamberlain, 25, and her husband, Tom, 31, who have three other children and live in Bath, Pa., agreed initially that for $25,000 she would be artificially inseminated with Kaplan’s sperm.

Mrs. Chamberlain claimed the deal with the Kaplans was voided when she had sex with Kaplan. The Kaplans, who had paid her $8,000, stopping payments after Mrs. Chamberlain had a change of heart and wanted to keep the baby.

The case drew attention because Kaplan and Mrs. Chamberlain abandoned that more common method for surrogate conceptions and, seeking to save time and money, resorted to sexual intercourse.

The child was conceived in one of seven attempts at the Kaplans’ home and in a motel with mirrored ceilings. For added inducement, they watched pornographic movies and used a gel-filled bed.

During the non-jury trial Mrs. Chamberlain had temporary custody of the boy.

While Mrs. Chamberlain was a ″loving, caring and well-meaning person,″ the judge wrote, her husband is prone to ″violence and explosiveness.″

″Given Chamberlain’s character and predisposition toward violence, there is a strong probability that this child will become the outlet of his wrath on some occasion,″ the judge said.

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