Earlier this year, People published this horror story about every intended parent’s worst fear: a surrogate who decides to run off with the baby. And in this case, to make matters worse, the intended parents were forced to pay child support while the surrogate raised the baby!
“Barbara” and “David,” the intended parents, sought out a surrogate after learning they would be unable to carry another child on their own. They screened numerous possible surrogates and finally decided on “Jamie,” after meeting her and her spouse at a LongHorn Steakhouse (it could be worse; at least it wasn’t Burger King).
Jamie was only 22 years old, but she claimed that although she was not ready to have her own children, she wanted to help others. Jamie and her husband returned a signed and notarized surrogacy contract to the intended parents and then went through a procedure using Jamie’s (the surrogate’s) eggs and David’s (the intended father’s) sperm to conceive. Once pregnant, red flags quickly flew in every direction. Jamie ultimately cut off contact with Barbara and David, and then, after the delivery, kept the child for herself.
Unsurprisingly, litigation ensued. But the court was baffled as to how to handle the case. Initially, it awarded joint custody to both Barbara and David, along with Jamie. Later, it rescinded some of Barbara’s parenting rights, and now David and Jamie share custody (I imagine this is awkward).
This story is disturbing on a number of levels. Frankly, the purported facts of the case made me think that it may be a hoax. But since I can’t find anything on Snopes, and since it was reprinted on PerezHilton’s celebrity gossip blog—the most reliable internet source for news after ATL—I am going to give the story the benefit of the doubt. But here are my problems:
How Did This Match Happen?!
The story does not explain how Barbara and David were introduced to Jamie. Based on my experience, I will assume that the internet played a significant role. This means that the usual vetting that is done through a matching agency—including a determination that basic criteria are met, the surrogate passing a background check, a psychological review, etc.—did not happen. That isn’t always bad. Sometimes, intended parents will bypass an agency when the parties already know each other well. But here, the intended parents clearly didn’t know Jamie before their LongHorn Steakhouse meeting, so the situation was already starting out on the wrong foot.
What Is The “Procedure” They Speak Of?
Even if there wasn’t an agency involved, any respectable fertility clinic would require Jamie to meet certain requirements. One of the most basic requirements to be a surrogate is that you have been through a pregnancy and delivery, and have a child of your own. Clearly that did not happen.
Jamie was not ready for her own kids yet. No fertility doctor I know would ever work with her as a surrogate for that reason alone. Moreover, every reputable clinic I have worked with requires psychological screening of all parties, as well as a legal clearance letter from an attorney confirming that the parties had legal representation when they entered into a surrogacy agreement. Here, there is a mention of a notarized agreement, but no mention of attorneys.
Without a doctor’s involvement, we are likely talking about either (1) an at-home procedure such as a turkey-baster type insemination, or perhaps (2) a more old-fashioned procedure called sexual intercourse.
Traditional Surrogacy Versus Gestational Surrogacy.
The situation described in this story is what’s known as “traditional surrogacy.” That’s where the surrogate is not just the carrier, but also the genetic “donor” or mother. Most assisted reproductive technology attorneys won’t touch traditional surrogacy arrangements with a ten-foot pole.
In fact, many find it hard to distinguish a traditional surrogacy from something more ethically questionable, like a directed adoption where the birth mother is paid for her baby. Adoption laws vary from state to state, but they uniformly ban baby-buying (here, Jaime was paid at least $15,000). Moreover, all states give the birth mom the chance to change her mind post-birth as to whether to give up the child for adoption. Given the difficulty in distinguishing a traditional surrogacy from a sketchy adoption situation, it is no wonder the court struggled with this case and awarded partial custody to the birth mom.
By contrast, “surrogacy” generally refers to gestational surrogacy where the surrogate is not genetically related to the child she is carrying. A gestational surrogacy is much easier for the legal system to digest and reasonably determine to sever legal ties between the surrogate and the child. Regulations specifically permitting and supporting surrogacy—such as those found in Illinois and California—are only applicable to gestational surrogacy, and do not apply to traditional surrogacy.
I am not sure of the complete story behind Barbara and David’s journey. I feel for them and can understand how trying it must be. But I can also tell you that the involvement of a knowledgeable attorney or two, a licensed physician, and a psychologist might have prevented this heartbreaking outcome.