The New York Times kicked off those chains, offering five, well-rounded articles on surrogacy.
Nidhi Desai wrote, Legalize Surrogacy So It Can Be Regulated. Also an attorney who specializes in adoption and reproduction issues, she focused on extinguishing surrogacy hostility.
She writes, “The current debate surrounding gestational surrogacy has lost sight of the incredible potential for these arrangements and has instead turned the issue into a political sword to fight any number of tangential issues. The question we should be asking as a society and within each state is how do we legislate these arrangements in a manner that protects all parties involved?”
A pithy question weaved with a positive impact.
“To protect all parties involved and address all interests, surrogacy should be widely legalized so that each state develops a framework within which it defines how we balance the complex interests of the parties,” Desai writes.
She goes on to reference Illinois, where there is consent, medical and psychological screening, legal representation, and more.
“Illinois further protects the process by ensuring that regardless of what happens to the intended parent or parents during the pregnancy, the surrogate is treated fairly and consistent with the terms of the agreement, and that intended parents, the surrogate and the state have the security of knowing that the intended parents are legally responsible for any resulting child,” she reports.
I also wholeheartedly agree with Margaret Swain in her article, When a Surrogate Has a Genetic Role.
Also an attorney in our field, she discusses the vast difference between gestational and traditional surrogacy.
In gestational surrogacy, a woman is implanted with a created embryo which has no genetic link.
“In contrast, a traditional surrogate is inseminated with the sperm of either the intended father or a sperm donor, and agrees to place the child with the intended parent or parents following birth. In the majority of jurisdictions, because of this genetic connection, an adoption (or some other type of parental rights termination) must occur before the parental rights of the intended parent or parents are finalized,” Swain writes.
A traditional surrogate has “birth mother” rights without legal documentation stating otherwise.
“In Arkansas and Wisconsin traditional surrogacy contracts are enforceable under case or statutory law. In those places, the intended parents, the surrogate and the child are ensured of the outcome of the arrangement, and the permanence of the placement is not subject to challenge, provided the arrangement falls within the requirements of the law,” Swain mentions.
If traditional surrogacy is decided, Swain recommends documentation be “carefully drafted, comprehensive legislation as to how those arrangements should be conducted,” to ensure protection.
And I fully agree.
Another great article in this series was by Andrea Braverman, Professionals Must Deal With a Surrogate’s Emotional Needs. Her credentials include clinical associate professor of obstetrics and gynecology, and of psychiatry and human behavior.
Braverman has been involved in the field of surrogacy for 25 years.
She begins her article opening with, “Women are able to make better choices about participating in gestational surrogacy when they are fully informed about the medical, emotional and legal challenges of the process. Psychological counseling and screening for the gestational surrogate and intended parents are a critical part of how surrogacy has been made safe, ethical and protective for everyone involved.”
She goes on to write, “Education and evaluation through counseling reduces risks by screening for psychopathology or unrealistic expectations. Research shows that psychological counseling helps surrogates and intended parents collaborate to create a positive experience.”
I also agreed when she pointed out how ongoing counseling for the surrogate is essential. Having an experienced counselor on hand can assist a surrogate during challenging parts of the journey.
One author I disagreed with was Arthur Caplan in, Paid Surrogacy Is Exploitative.
He writes, “I have no issue with altruistic surrogacy. It is paid surrogacy that gives me ethical heartburn, especially paid surrogacy that involves travel to other nations to find poor women to bear babies.”
Why shouldn’t a surrogate get paid for what she is doing? It takes dedication, work, and commitment. And intended parents are so indebted to her.
In my practice, surrogacy is not a woman’s main source of income and it never should be.
The other article, written by Lisa Ikemoto, a law professor was entitled, The Role of International Law for Surrogacy Must Be Expanded.
Ikemoto writes, “In the global market, legal uncertainty makes surrogacy fraught for intended parents and for birth mothers.”
She highlights the challenges regarding legal citizenship and legal parents. According to Ikemoto, international law could change this.
“At the least, surrogacy should only move forward when children born of surrogacy will have legal parents and citizenship assured, when surrogates’ health, well-being and daily lives are prioritized, and when intended parents are protected against discrimination based on marital status, sexual orientation, or other status.”
I agree. But in the meantime, having an attorney who specializes in national and international reproduction issues is the next best thing.Read More
In the U.S.A., every state in the nation has its own laws regarding surrogacy. In one state it may be legal, but cross another state line, and it may be a crime.
Tamar Lewin’s article in the New York Times, “Surrogates and Couples Face a Maze of Laws, State by State,” reviews a complicated topic.
Lewin writes, “While surrogacy is far more accepted in the United States than in most countries, and increasing rapidly (more than 2,000 babies will be born through it here this year), it remains, like abortion, a polarizing and charged issue. She continues, “There is nothing resembling a national consensus on how to handle it and no federal law, leaving the states free to do as they wish.”
Lewin points out that there are a total of 17 states which legally allow surrogacy. But with that said, all those states don’t follow the same protocol – each state is different with their views and restrictions.
“In 21 states, there is neither a law nor a published case regarding surrogacy, according to Diane Hinson, a Washington, D.C., lawyer who specializes in assisted reproduction. In five states, surrogacy contracts are void and unenforceable, and in Washington, D.C., where new legislation has been proposed, surrogacy carries criminal penalties. Seven states have at least one court opinion upholding some form of surrogacy,” she writes.
And then there’s California. It’s a haven for intended parents looking for a surrogate to help them build a family.
The reporter adds, “California has the most permissive law, allowing anyone to hire a woman to carry a baby and the birth certificate to carry the names of the intended parents. As a result, California has a booming surrogacy industry, attracting clients from around the world.”
Lewin also highlights surrogacy arrangements gone wrong.
She mentions a surrogate in Connecticut, Crystal Kelley, being offered $10,000 for an abortion, after a 5-month ultrasound discovered the fetus had health issues including heart defects, a cyst in the brain and a cleft palate.
Kelley flew to Michigan, “where surrogacy contracts are unenforceable,” had the baby and the child was adopted by another family.
As I’ve previsoulsy said, these types of surrogacy cases are not the norm.
Jennifer Lahl also appears in the article, the film creator of, “Breeders: A Subclass of Women?”
Lewin mentions one surrogate featured in the film: A Texan woman, Gail Robinson, who was a surrogate for her brother and his partner.
“In the course of the pregnancy, she had a serious falling-out with her brother and suffered life-threatening eclampsia. Ms. Robinson, who had never had a child of her own, ended up seeking custody of the twin girls she carried and was declared a legal parent, along with the partner, despite her lack of genetic connection to the twins,” she writes.
Very interesting considering the fact that in 2011, reporter Ted Sherman covered this legal battle in an article entitled, “N.J. gay couple fight for custody of twin 5-year-old girls.”
The surrogate in this Texas case no longer has custody. The biological father does and she has visitation rights, which I think she should never had received. She’s not the biological mother and she agreed to act as a Gestational Carrier for her brother and his partner.
Yes, I know, she nearly died and that is awful; however, I’m stunned that she had never given birth before the surrogate pregnancy and that’s an absolute must before being a surrogate.
Not only must a surrogate have given birth to at least one healthy child, but that child must live at home with her.
She nearly dies and she’s never done this before. I don’t care who you are: sister, cousin, best-friend – if you’ve never given birth I won’t be involved in the case. While Lewin does highlight a positive surrogate story, she switches gears on how states are trying to find middle ground, comparable to Illinois.
Lewin reports, “The Illinois law requires medical and psychological screenings for all parties before a contract is signed and stipulates that surrogates be at least 21, have given birth at least once before, and be represented by an independent lawyer, paid for by the intended parents.”
I agree. While medical and psychological screenings are not part of the California surrogacy statute, I don’t know any attorney in this industry who works with surrogates who have not been medically and psychologically screened.
For couples looking to do surrogacy, you need to be careful who your attorney is and that they know the laws in the state where your surrogacy case will be applied – or if they don’t, they associate with someone who does. Most attorneys in California don’t have to know the laws in New Jersey, Idaho, Oklahoma, Florida, North Carolina, to name a few, but I do.
If you want to work in this business and do a good job, it’s just what you do.
Televisions throughout Thailand were turned on to hear Gen. Prayuth Chan-ocha give his debut political address. According to the Washington Post, Gen. Prayuth spoke for two hours delivering his 11-point plan in an effort to overthrow previous government authority.
In his speech, the Associated Press writes, “Prayuth has said the army needed to intervene to halt violent protests that had paralyzed the government. He has vowed to restore democracy after making sweeping political reforms, which critics say are designed to purge the influence of the ousted ruling party and benefit an elite minority allied to the establishment that has failed to win national elections for more than a decade.”
Listed on the 11-point plan was regarding surrogacy in Thailand. Gen. Prayuth wants to end it once and for all.
The article points out, “A string of recent scandals has lifted the lid on Thailand’s largely unregulated commercial surrogacy industry, which has grown over the past decade.”
Gen. Prayuth looked into the camera, and told viewers that his new Cabinet would work diligently, “to prevent and solve the problem of teen pregnancy, the medical and ethical problems of surrogacy and organ and stem cell transplants.”
The Associated Press went on to report, “The government has vowed to shut down the commercial surrogacy industry and is expected to pass a law this year prohibiting it.”
Other items on the 11-point plan included:
- Protecting the monarchy
- Putting an end to insurgency
- Addressing human trafficking and the sex trade
While the Thai government collects and implements its new laws, still, we have intended parents around the world, whose surrogates are carrying their babies in Thailand. With laws continuing to shift, the emotional stress for both surrogates and intended parents is immense.
Our hope is that these surrogates remain safe, and the transition to get these babies to their new homes is seamless.
Have you ever read an article, and midway through you begin to feel your blood boil because they just didn’t get it? That’s how I felt reading the article below.
The worst part is this piece was published in the Wall Street Journal. It’s titled, “Surrogacy Gives Birth to an Unusual Alliance.” However, the subtitle says it all: “Ethical concerns about paying for babies bridge the sacred-secular gap.”
Its writer, Christopher White, begins the article by mentioning how the states of New York, Minnesota and Washington D.C. have legislation pending to legalize commercial surrogacy.
That’s a step forward – but not in this article.
White reports, “The Catholic Church has long opposed surrogacy, whether paid or unpaid. Nowadays, with increasing pressure for the legalization of paid surrogacy, the church has found itself with an unfamiliar ally: feminists.” He presses on, “The Catholic Church and women’s rights groups are accustomed to clashing over policy matters involving contraception and abortion. But now the two camps can often be found working hand in hand when it comes to protecting both women and children from being exploited in the growing and largely unregulated fertility industry.”
Oh, really? Did I miss that e-mail announcement and invitation?
White sensationalizes his point by mentioning the unfortunate “Baby Gammy” surrogacy, which of course, is not the norm.
With a religious spin he writes, “Catholic feminist Lucetta Scaraffia took to the pages of the Vatican’s official newspaper, L’Osservatore Romana, to describe the Baby Gammy story as evidence of the ‘throwaway culture’ that Pope Francis has decried. ‘We should not be surprised,’ she wrote, ‘if parents who have ordered a baby and rented a woman’s womb refuse it at birth if it is not healthy and perfect.’”
White goes on to mention how the laws in the U.S.A. differ in terms of paid or unpaid surrogacy.
White pushes on with the following, “Leaders of the Pro-Choice Alliance for Responsible Research, writing online in April for the reproductive-health publication RH Reality Check, urged serious consideration regarding surrogacy: ‘Having insisted so powerfully on women’s rights, how do we ensure that we are not pitting one woman’s rights and well-being against another’s?’”
Did he say women “pitted” against one another?
A grown woman, represented by legal counsel, after meeting with her agency’s representative (if she has one), a doctor and his or her staff and a trained psychologist, doesn’t know her own mind and can’t decide on her own if surrogacy is right for her and her family?
What a ridiculous argument. If the writer bothered to look back at the landmark 1993 ruling in the Johnson v. Calvert case, heard by the California State Supreme Court, he would have found that the courts rejected that very same argument put forth by the surrogate’s attorney that she didn’t know her own mind when she signed the contract. The court held 6-1 that the surrogate mother had no parental rights to the baby.
White also said in his article, “Too often paid surrogacy appears exploitative. Women who serve as surrogates tend to be poor and are tempted by the fees even though they’re taking on a nine-month, 24-hour, seven days a week physical and emotional commitment. For $25,000—a common surrogacy fee—the arrangement comes out to less than $4 an hour.”
Again, White didn’t do his research.
Aside from the money aspect, it’s not easy being a surrogate and it takes a lot of hard work. Most women who think it is “easy money” never pass the screening or drop out when they realize how tough it is. And, most agencies that I work with do not work with surrogate’s who are poor. The money these women receive has to be the “icing” on the cake – not the entire “cake.”
White then mentions the risks of being a surrogate.
Yes, there are risks and that’s why the surrogates in my practice all have their own, separate counsel. It’s the law in California, but I also participate in contract negotiations where surrogates are in other states where it may not be the law. And while most surrogates don’t think they need an attorney, I really don’t care — they get one.
Just when you thought you’ve read enough, White pushes on about a study which highlighted an “unsettling aspect” which cut off the natural maternal bonding of pregnancy after the surrogacy delivery.
Write reports, “A prominent June 2013 study in the Journal of Child Psychology and Psychiatry found that children born through surrogacy are at great risk of adjustment difficulties and psychological problems.” He goes on to vaguely write, “There are no long-term studies gauging how young adults conceived through surrogacy are faring, but the anecdotal evidence from such children’s countless blog posts and interviews suggest that many are wary of the very practice that allowed for their conception.”
If that’s his claim, then why didn’t White do his research, interview these adults, and document their statements?
I have 13-year old children born via surrogacy; and, I know a lot of families and children born via surrogacy. I can tell you from experience that those children do not have adjustment issues because of how they were born. That’s like saying my dad had issues being a father because he had one arm and one leg. He had issues because he had one and one leg, but that didn’t mean he didn’t know how to love a child. That was just my dad’s story of his life. Just like children have their story of how they were created and born. It’s just that: their story.
Let’s not make it any more than what it is.Read More
The pendulum has swung in favor towards some European couples and individuals who have had their baby through surrogacy in the United States.
The great news is that a spotlight is shining bright on how it’s in the best interest of a child to be recognized by their parents and be given Nationality in their country.
That may sound simple enough, but it’s been a struggle, and in many ways continues to be a challenge.
In Switzerland, surrogacy is still deemed illegal.
Regardless of this, two gay fathers recently won an unparalleled ruling which made them beam with victory as the legal parents of their child who was born via a surrogate in the states.
According to Mitch Kellaway, an author at The Advocate, “The two St. Gallen-based fathers, whose partnership is legally registered in their home country, chose to have their child through the artificial insemination of a donor egg by one partner’s sperm. Both were listed as fathers on the U.S. birth certificate, after their California-based surrogate mother delivered the newborn and abdicated parental rights. Kellaway continued, “But when Swiss law still considered the surrogate mother and her husband the legal parents of the child, the two gay fathers petitioned the Swiss national registry for parental recognition, supported by their own local registry.”
The request pushed it to St. Gallen’s courthouse in where it recognized the newborn’s birth certificate issued in California.
An item remaining on record at Federal Office of Justice paperwork will be the surrogate’s paternity.
While an appeal may still be issued, to date, none has been filed.
On the heels of this case, is the European Court of Human Rights (ECHR) breakthrough decision which occurred a few weeks ago.
Parenthood in the 21st century is changing not only here in the states, but is rippling across the pond.
The recent ruling in the Mennesson v. France is an excellent example of this.
Before a final decision, there was a movement to prohibit a relationship between a father, who is a citizen of France, and his children born via a surrogate in the United States. In a press release issued by the Registrar of the Court, it clearly spelled whatever forbidden measures were in place should be cast away.
Regarding the case of Mennesson v. France, “Totally prohibiting the establishment of a relationship between a father and his biological children born following surrogacy arrangements abroad was in breach of the Convention, The European Court of Human Rights….”
In detail is stated that the case, “concerned the refusal to grant legal recognition in France to parent-child relationships that had been legally established in the United States between children born as a result of surrogacy treatment and the couples who had had the treatment.”
Ultimately, the ECHR recognized a zero violation of Article 8, which underscores a right to respect for private and family life. As well, the ECHR deemed there was a violation of this same article in terms relating to the children’s rights for respect and private life.
In addition to the Mennesson family, the Labassee family was also named since they also had children via surrogacy in the United States and had also been fighting to have their children recognized.
The press release pointed out in its summation, “The Court observed that the French authorities, despite being aware that the children had been identified in the United States as the children of Mr. and Mrs. Mennesson and Mr. and Mrs. Labassee, had nevertheless denied them that status under French law. It considered that this contradiction undermined the children’s identity within French society.”
What this all means is that the decision of the ECHR could provide a significant change for its 47 member states. A handful of these countries include France, Germany, Switzerland, Belgium, Sweden, Italy and Spain. Those who seek surrogacy overseas could be granted parental rights due to a genetic connection. This genetic connection equals citizenship for the children even if surrogacy is deemed illegal in that country.
Like the Switzerland case mentioned earlier, this ECHR judgment has three months for an appeal to the Grand Chamber of the Court.
No appeal has been mentioned at this time which means we are moving in the right direction.Read More
The recent surrogacy upheaval in Thailand is tossing intended parents into a state of confusion, and for many, in an emotional panic.
It’s an absolute nightmare.
In a CNN report titled, “Babies caught in Thailand surrogacy crackdown,”journalist Hilary Whiteman uncovers this upsetting story.
She writes, “What’s been happening is an unprecedented crackdown on a lucrative industry that has flourished in the absence of rules and regulations. In recent weeks, Thai authorities have raided a number of surrogacy clinics, closing some down and throwing hundreds of couples into a legal and emotional maelstrom.” She continues, “Families Through Surrogacy (FTS), a non-profit organization that helps intending parents through the process, says there are currently around 400 couples with pregnant surrogates or frozen embryos in Thailand.”
As you can imagine, this non-profit has been swamped with calls from scared, intended parents. According to the records at FTS, these couples are from Australia, Canada, Israel and the U.S.A. Half of them, however, are from Australia.
Founder of FTS, Sam Everingham, told CNN, “Many clinics are being run on a skeleton staff, or staff working from home. As a result it’s very hard for parents to contact their clinics.” Everingham added, “We want to assure parents that their surrogates are being looked after. They shouldn’t panic, they shouldn’t try to contact their surrogates direct. This is a difficult time but clinics are doing all they can to ensure those existing pregnancies are looked after.”
Not panic? That’s a hard thing for intended parents to do when their surrogates are in the midst of such turmoil.
Whiteman reports, “The recent police raids have exposed the extremes of surrogacy in Thailand, including the case of a 24-year-old Japanese man suspected of fathering at least 12 surrogate babies because he wanted ‘a big family,’ according to his lawyer.”
The article goes on to highlight the case of baby Gammy– the baby with Down Syndrome, who is being cared for by his surrogate mother, after its intended parents abandoned him but took his twin sister back to Australia.
This highly, negatively charged press has placed Thai surrogacy in the line of fire.
Change in the industry was already underway, Whiteman writes, with the announcement by Thailand’s military government in late July that clinics would be reviewed to ensure they were abiding by the Medical Council’s code of conduct.
Whiteman continues to report, “Last week, the interim Thai Cabinet approved a draft law to make commercial surrogacy a criminal offense. It’s unclear when it will be formally approved by the National Legislative Assembly and endorsed by the Thai King.”
Everingham told CNN that he thought it would be highly unlikely that those in current surrogacy arrangements would be charged and prosecuted.
Nevertheless, the fear of uncertainty is still there.
Everingham was quoted, “The Thai government has assured us in recent days that there will not be penalties for those in current arrangements, whether they be surrogates or intending parents. (But) there will be a new process for exit from the country.”
In fact, this past week, a couple from the U.S.A. and Australia were prevented from leaving Thailand with their newborns.
Apparently, they needed more documentation, which they furnished.
They have now safely left.
However, Whiteman wrote, “A spokeswoman from the U.S. Embassy said: ‘We are aware of reports of cases where the parents were not permitted to exit, and we are seeking clarification about Thai Immigration requirements.’”
Whiteman then highlighted the legal limbo situation. Now, intended parents with pregnant surrogates need to undergo a Family Court ruling. This ruling is required before taking a baby out of Thailand.
According to Everingham, the process could take up to a half year. He also noted, “The extra costs and delays are an unexpected blow for couples who have already spent thousands of dollars on surrogacy services, but there’s little they can do.”
I think it’s incredibly tragic that parents do not know what has happened to their surrogates, their children or both. Could you imagine? I feel that surrogacy should be allowed as a carefully and reasonably regulated industry and not be punished by imprisonment, or fines or both, like in some parts of Australia.
Regulate surrogacy, like we do here in California, and in other states.
Preventing it so strictly like Australia and other countries is what led parents to seek surrogacy in Thailand.
Now looks what’s happened.
When people place their faith in someone, and in turn have been cheated financially, it can be agonizing. But when it’s about dreams of starting, it’s utterly heart-breaking for the victims and beyond despicable for the cheater.
Planet Hospital, founded by the regarded shyster, Rudy Rupak, 45, has caused both financial and emotional distress for many couples wanting a baby.
Established in California in 2002, Planet Hospital is a medical tourism company and a self-promoting soapbox for Rupak.
In the New York Times, Tamara Lewin wrote a comprehensive article titled, A Surrogacy Agency That Delivered Heartache.
Lewin writes about Rupak and his business, “Over the last decade he has held forth about how his company has helped Americans head overseas for affordable tummy tucks and hip replacements. And after he expanded his business to include surrogacy in India for Western couples grappling with infertility — and then in Thailand, and last year, Mexico — he increasingly took credit for the global spread of surrogacy.” She continues, “But now Mr. Rupak is in involuntary bankruptcy proceedings, under investigation by the F.B.I. and being pursued by dozens of furious clients from around the world who accuse him of taking their money and dashing their dreams of starting a family.”
Let me intervene here by saying that according to CBS News, although Rupak’s surrogacy business is closed and undergoing bankruptcy proceedings, he still operates his other medical tourism procedures around the globe.
Dumbfounding, isn’t it?
Now, let’s get back to the New York Times publication.
The article goes on to highlight how Planet Hospital attracted intended parents to countries such as Mexico and India because of the price tag. Egg donors, IVF clinics and surrogates were half the cost as compared to the U.S.A.
In the article, Johnathan C. Dailey, an attorney in Washington, had the misfortune of doing business with Rupak. In Dec. 2013, he wired his initial installment of $37,000 to Planet Hospital. The intended monies were going toward a surrogate living in Mexico.
The reporter writes, “He [Dailey] and his fiancée flew to Cancún to leave a sperm deposit at the clinic that would create the embryo and to visit the downtown house where their surrogate would live while pregnant. They picked a ‘premium’ egg donor from the agency Planet Hospital sent them to.”
Then all activity stopped.
Dailey said in the article, “It was just outright fraud. It’s like we paid money to buy a condo, they took the money, and there was no condo. But it’s worse, because it’s about having a baby.”
Then there’s Rhyannon Morrigan and her husband who signed a surrogacy contract in 2012 based in India.
She told the reporter, “By the time you realize how deep you’re in, you’ve lost all your money and you’re stuck.”
Looking back, Morrigan said how Planet Hospital exchanges were mainly verbal, and rarely, was anything put in writing.
Morrigan also admits that there were red flags early on.
She said to the press, “Even at the start, when we sent the contract in and asked for a signed copy back, we never got one.” She went on to say, “We got so tired of excuses and lies. By July 2013, I’d pretty much let go of the idea of getting my money back, but I didn’t want it to happen to anyone else.”
To help warn others of the heart-wrenching scam, Morrigan posted her reviews and complaints on cyberspace. In return, she received “threats” from Rupak.
The list of Planet Hospital complaints is a lengthy one.
In the article, former Planet Hospital employee, Catherine Moscarello, chimed in. She described the company as dealing in “unsavory practices.
Moscarello told the reporter, “The object was to get money.”
Like a revolving door, Moscarello explained how Rupak would frequently change fertility clinics.
“….whenever his relationship with a clinic in India or Thailand or Cancún broke off, he would disparage the clinic and the doctors there.” Moscarello said. She continued, “But what was really happening was that he wasn’t paying his bills.”
Back on his soapbox, Rupak said in an interview, “What happened is entirely 100 percent my fault, but its mismanagement rather than outright fraud.”
More lies, don’t you think?
The New York Times reporter so eloquently writes, “The emerging Planet Hospital story, which Mr. Rupak characterized as one of mismanagement rather than fraud, stands as a cautionary tale about the proliferation of unregulated surrogacy agencies, their lack of accountability and their ability to prey on vulnerable clients who want a baby so badly that they do not notice all the red flags.”
Quite honestly, I couldn’t have stated it better myself.Read More