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http://www.nytimes.com/2014/07/06/us/foreign-couples-heading-to-america-for-surrogate-pregnancies.html?emc=edit_th_20140706&nl=todaysheadlines&nlid=36377513&_r=0 -
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USA - Foreign Couples Come to America for Surrogate Babies
“Everyone was shocked, and asked everything about how we do this,” said Paulo, who spoke on the condition that neither his last name nor that of his husband, João, be used since what they were doing is a crime in Portugal.
Thomas Reuss, in
foreground, and Dennis Reuther of
While babies through
surrogacy have become increasingly common in the United States, with
celebrities like Elton John, Sarah Jessica Parker and Jimmy Fallon openly
discussing how they started a family, the situation is quite different in
Portugal — as it is in most of the world where the hiring of a woman to carry a
child is forbidden. And as Paulo and João have discovered, even bringing home a
baby born abroad through surrogacy can be complicated.
In an
era of globalization, the market for children crosses national borders; witness
the longtime flow of Americans who have gone overseas to adopt babies from
South Korea, China, Russia and Guatemala.
Other
than the United States, only a few countries — among them India, Thailand,
Ukraine and Mexico — allow paid surrogacy. As a result, there is an increasing
flow in the opposite direction, with the United States drawing affluent couples
from Europe, Asia and Australia. Indeed, many large surrogacy agencies in the
United States say international clients — gay, straight, married or single —
provide the bulk of their business.
The traffic highlights a
divide between the United States and much of the world over fundamental
questions about what constitutes a family, who is considered a legal parent,
who is eligible for citizenship and whether paid childbirth is a service or
exploitation.
In many nations, a
situation that splits motherhood between the biological mother and a surrogate
carrier is widely believed to be against the child’s best interests. And even more so when three women are involved:
the genetic mother, whose egg is used; the mother who carries the baby; and the
one who commissioned and will raise the child.
Many countries forbid
advertising foreign or domestic surrogacy services and allow only what is known
as altruistic surrogacy, in which the woman carrying the baby receives payment
only for her expenses. Those countries abhor what they call the
commercialization of baby making and view commercial surrogacy as inherently
exploitive of poor women, noting that affluent women generally do not rent out
their wombs.
But while many states,
including New York, ban surrogacy, others, like California, welcome it as a
legitimate business. Together, domestic and international couples will have more
than 2,000 babies through gestational surrogacy in the United States this year,
almost three times as many as a decade ago. Ads galore seek egg donors,
would-be parents, would-be surrogates. Many surrogates and intended parents
find each other on the Internet and make their arrangements independently,
sometimes without a lawyer or a formal contract.
The
agencies that match intended parents and surrogates are unregulated, creating a
marketplace where vulnerable clients yearning for a baby can be preyed upon by
the unscrupulous or incompetent. Some agencies pop up briefly, then disappear.
Others have taken money that was supposed to be in escrow for the surrogate, or
failed to pay the fees the money was to cover.
Surrogacy began in the
United States more than 30 years ago, soon after the first baby was born
through in vitro fertilization in England. At the time, most surrogates were
also the genetic mothers, becoming pregnant through artificial insemination
with the sperm of the intended father. But that changed after the Baby M case in 1986, in which the
surrogate, Mary Beth Whitehead, refused to give the baby to the biological father and
his wife. In the wake of the spectacle of two families fighting over a baby
who belonged to both of them, traditional surrogacy gave way to gestational
surrogacy, in which an embryo is created in the laboratory — sometimes using
eggs and sperm from the parents, sometimes from donors — and transferred to a
surrogate who has no genetic link to the baby.
But thorny questions
remain: How much extra will the surrogate be paid for a cesarean section,
multiple births — or loss of her uterus? What if the intended parents die
during the pregnancy? How long will the surrogate abstain from sex? If she
needs bed rest, how much will the intended parents pay to replace her paycheck,
and cover child care and housekeeping?
“The gestational carrier
has to agree to follow medical advice, but there has to be some level of
trust,” said Andrew W. Vorzimer, a Los Angeles surrogacy lawyer who advises on
many arrangements that have gone awry. “Once everyone goes home and the doors
are closed, there’s no way to really monitor what’s going on.”
Since the Baby M case, the
common wisdom has been that the main risk for parents is the surrogate’s
changing her mind. But Mr. Vorzimer, who has tracked problem cases in the
United States over the years, said it was the reverse: Trouble most often
starts with the intended parents. One intended mother decided, well into the
pregnancy, that she could not raise a child that was not genetically hers.
Another couple, after a divorce, offered the surrogate mother money to have an
abortion.
Over the decades, Mr.
Vorzimer said, there have been 81 cases of intended parents who changed their
minds and 35 in which the surrogate did — 24 of them traditional surrogates who
both provided the egg and carried the baby.
Surrogacy remains
controversial, even in the United States, despite the rapid proliferation of
clinics, doctors and agencies. When all goes well, supporters say, the arrival
of a baby to parents with no other path to a biological child is an
unparalleled joy.
Opponents tend to focus on
the cases in which the surrogate suffers health problems or is abandoned by the
intended parents, or in which the fetus has serious defects. Abortion politics
hang heavily over the issue: Often, surrogacy involves twin or triplet
pregnancies, with the possibility of selective reduction.
Critics
sometimes draw an analogy to prostitution, another subject that raises debate
over whether making money off a woman’s body represents empowerment or
exploitation.
In Canada, as in Britain,
payment for surrogacy is limited to expenses.
“Just
like we don’t pay for blood or semen, we don’t pay for eggs or sperm or
babies,” said Abby Lippman, an emeritus professor at McGill University in
Montreal who studies reproductive technology. “There’s a very general consensus
that paying surrogates would commodify women and their bodies. I think in the
United States, it’s so consumer-oriented, so commercially oriented, so caught
up in this ‘It’s my right to have a baby’ approach, that people gloss over some
big issues.”
Germany flatly prohibits
surrogacy, with an Embryo Protection Act that forbids implanting embryos in
anyone but the woman who provided the egg. Ingrid Schneider of the University
of Hamburg’s Research Center for Biotechnology, Society and the Environment
said it is in children’s best interest to know that they have just one mother.
“We regard surrogacy as
exploitation of women and their reproductive capacities,” Dr. Schneider said.
“In our view, the bonding process between a mother and her child starts earlier
than at the moment of giving birth. It is an ongoing process during pregnancy
itself, in which an intense relationship is being built between a woman and her
child-to-be. These bonds are essential for creating the grounds for a
successful parenthood, and in our view, they protect both the mother and the
child.”
With all that is known
about adopted children’s seeking out their biological parents, other European
experts say, it is wrongheaded to create children whose relationship with the
woman who provided the egg or carried them will be severed.
Emotional and
Financial Costs
The
restrictions in many countries have been a boost for American surrogacy. For
overseas couples, the big draw is the knowledge that many states have
sophisticated fertility clinics, experienced lawyers, a large pool of egg
donors and surrogates, and, especially, established legal precedent.
“We chose the United States
because of the certainty of the legal process,” said Paulo, an engineer and
scrub nurse. “Surrogacy is very secretive in Portugal. People don’t talk about
surrogacy, and it’s hard to get any information. In the United States it is all
clear.”
But it is not cheap.
International would-be parents often pay $150,000 or more, an amount that rises
rapidly for those who do not get a viable pregnancy on their first try. Prices
vary by region, but surrogates usually receive $20,000 to $30,000, egg donors
$5,000 to $10,000 (more for the Ivy League student-athlete, or model), the
fertility clinic and doctor $30,000, the surrogacy agency $20,000 and the
lawyers $10,000. In addition, the intended parents pay for insurance, fertility
medication, and incidentals like the surrogate’s travel and maternity clothes.
Because surrogacy is so
expensive in the United States, many couples travel to India, Thailand or
Mexico, where the total process costs half or less. But complications have
arisen — as in the case of a couple stuck in India for six years, trying to
take home a baby boy, whom genetic testing had found not to be related to them,
apparently because of a mix-up with the sperm donation.
Four
years ago, according to Stuart Bell, the chief executive of Growing
Generations, a Los Angeles surrogacy agency, only about 20 percent of its
clients came from overseas, but now international clients are more than half.
Other agencies report the same trend.
“Anyone who can afford it
chooses the United States,” said Lesa A. Slaughter, a fertility lawyer in Los
Angeles.
Some lawyers who handle
surrogacy tell of ethical problems with intended parents from abroad. Melissa
Brisman, a New Jersey lawyer who handled Paulo and João’s surrogacy, had a
prospective client from China who wanted to use five simultaneous gestational
surrogates. She turned him down.
Mr. Vorzimer, in California,
had an international client who wanted six embryos implanted.
“He wanted to keep two
babies, and put the rest up for adoption,” Mr. Vorzimer said. “I said, ‘What,
like the pick of the litter?’ and he said, ‘That’s right.’ I told him I
wouldn’t work with him.”
Probably the most agonizing
cases, though, are those in which the intended parents and the surrogate do not
agree on what to do about a fetus with severe defects.
“Mom walked out of the
room, left me lying there, and I thought: ‘This is not my baby. I should not be
dealing with this by myself,’ ” she said. “But I told Mom, ‘I’ll respect
your decision, whatever you decide, because this is your baby.’ A couple days
later, they called and told me they didn’t want their little boy so I should
get an abortion.”
With only days left before
an abortion would become illegal under Arizona law, Ms. Rice found herself
unwilling to kill the fetus.
“I think my motherly
instincts kicked in when they didn’t want him,” she said. “I told them I just
couldn’t do it. Dad told me God was going to punish me for disobeying them.”
Ms. Rice found a woman
whose child had the same condition who wanted the baby. And on the 28-week
ultrasound, the brain looked somewhat better. When Ms. Rice called and told the
intended parents that someone would take the baby, they said they had decided
they wanted him after all. At the delivery, though, the mother did not show up.
“When I called, she said
Dad had been in the waiting room all night,” Ms. Rice said. “I was crying. I
said he has to come in; he’s the father; he should be here. He came in, he cut
the cord. He took the baby. And that’s the last I ever heard from them.”
Ms. Rice said she had no
idea how the baby was doing, or even whether his biological parents had kept
him.
“I found them on Facebook,
and there’s no trace of him, so I think they gave him up for adoption,” she
said. “I don’t know where he is, and it kills me every day.”
Many
women who have had a fulfilling surrogate experience go on to carry a second,
or third, child for the same couple, finding pleasure in being pregnant and
conferring the gift of a child and a continuing connection with another family,
while earning money in the process. Kelly, a licensed practical nurse in
Pennsylvania with two children who asked not to have her last name used to
protect her privacy, delivered a baby, Nico, for two German men, Thomas Reuss
and Dennis Reuther, in 2012, and is now pregnant with their twins, two more
boys.
“I love being pregnant, but
I don’t want to have any more children — oh, getting up in the middle of the
night; oh, day care; oh, I’m done,” she said. “It’s great to see Thomas and
Dennis with Nico, and how excited they are about twins. The money is nice, but
we could manage without it, and it’s not why I’m doing this.”
For
the Portuguese couple, the journey began when Paulo saw a television report
about surrogacy, showing a gay couple who were unidentifiable in the shadows.
The next day, he went to the television studio to ask how to find the two men.
The producer would not share their names, but on rewatching, Paulo and João saw
the name of the Connecticut fertility clinic.
Two years later, they were
in a hotel in central Pennsylvania for the birth of their son, Diogo. His
American passport had arrived. The bittersweet farewell dinner with the
surrogate and her family was over, and the flight home was booked for the next
day. All that was left to do was gaze at their sleeping baby, angelic in his
white onesie, his starfish hands extended.
“It’s like a miracle,” said
Paulo. “I cried when I saw the flight booking on the computer. I said: ‘Look,
João. It’s not us two anymore. We are three.’ ”
Getting to three was long,
stressful and expensive, with problems at almost every turn — and one large
hurdle remaining, as they apply for Diogo’s Portuguese citizenship.
After speaking to the
Connecticut clinic, they chose a surrogacy agency that asked them to wire
$100,000 up front. On the verge of sending the money, João decided that was too
much. Without telling Paulo, he went back to his online research, and discovered
complaints against that agency. Their second agency did not work, either: After
months of back and forth, the agency turned them down, apparently because of
concerns over their finances.
“They wasted almost a year
of our time,” Paulo said.
Even with an agency they
praise as responsible and responsive — an agency owned by Ms. Brisman, the New
Jersey lawyer — obstacles continued. Their first donor’s eggs did not produce a
pregnancy. The second had a genetic disorder that did not show up in the
initial paperwork. A third produced a good supply of eggs, but after the first
embryo was implanted, the surrogate miscarried. Their next surrogate did not
get pregnant on the first try.
Through it all, the bills
mounted. João and Paulo said they planned to burn them so their son would never
have to think about the price, which they acknowledged was hundreds of
thousands of dollars.
They
have also decided not to answer any questions about which of them is the father
— embryos that were inseminated by each were implanted — unless Diogo is the
one asking.
The custody battle over Baby M was the first time a court
considered surrogacy. Today’s families are created in many different ways. But
have we resolved the question of surrogacy?
“The
information belongs to him,” Paolo said.
In the end, their warm
relationship with the woman who bore their child was about the smoothest part
of the process. The night before they were to take Diogo home, she sent an
emotional text: “I know I’m doing well because I haven’t cried yet,” she said.
“But I know I will.”
João and Paulo, like most
international couples using an American surrogate, want their baby to be a
citizen of their home country. But many Chinese parents take a different tack,
keeping the American citizenship automatically conferred on every baby born
here. Some hope the baby will attend an American university or help the family
to live and work in the United States. But for Chinese clients, too, overseas
surrogacy carries a complication, making it difficult for the baby to get a
hukou, or household registration card, granting access to local schools and
hospitals.
And there is another issue
in China: restrictions on the number of children per family. Some Chinese
couples, particularly older couples, turn to American surrogacy for a second
child, whose American citizenship might clear the family from scrutiny.
But most surrogacy agencies
say they will work only with intended parents who cannot carry their own baby,
as recommended by the guidelines of the American Society for Reproductive
Medicine. So Chinese clients who seek an overseas surrogate to get around the
one-child rule create a dilemma.
“We usually only take
clients who have a medical need for surrogacy, but in December, we decided to
bend that rule, for Chinese people, government officials, who would be in
trouble if they break the one-child rule,” said Karen Synesiou, chief executive
of the Center for Surrogate Parenting, in Encino, Calif. “We’re thinking of it
as political surrogacy.”
Then, too, agencies and
lawyers say, there has been a recent uptick in the number of clients seeking
“social surrogacy” — that is, having someone else carry their baby so as not to
damage their career, or their figure. And not all agencies follow the guidelines.
“We don’t feel like we
should be the gatekeepers when it comes to that,” said Saira Jhutty, chief
executive of Conceptual Options, a California agency.
Final Hurdles at
Home
For all the intimacy of carrying a baby for someone else, there is no template for the relationship between intended parents and the woman who will bear their child. Most contracts contain a clause requiring confidentiality unless both parties agree otherwise. And most stipulate that there will be an abortion if the fetus has serious defects, or a reduction in case of triplets or quadruplets. While no court would force a woman to have an abortion, lawyers say, a surrogate who refused to honor the agreement, and proceeded to carry a baby to term against the intended parents’ wishes, could perhaps be made to pay the costs of rearing the child, under the legal concept of wrongful birth. As surrogacy spreads, lawyers say, litigation over such issues may erupt.
For
those from abroad, getting an American-born baby home can involve tangled
immigration problems. Some countries require a new birth certificate, a
parental order or an adoption. Some will not accept an American birth certificate
with two fathers listed as the parents. Occasionally, a baby can be denied
entry into the parents’ home country.
But
international law is catching up with social practice: On June 26, in a case
involving two sets of children born to American surrogates, the European Court
of Human Rights ruled that France had violated the European Convention on
Human Rights, and undermined the children’s identity, by refusing to recognize
their biological father as their legal parent, easing the way to French citizenship.
The decision will most
likely smooth the path for Paulo, João and their son, who entered Portugal on
his American passport. So far, efforts to register Diogo in Portugal have
failed, because the Portuguese process requires that a mother be named. Meanwhile,
they have been advised to seek a residence card for him.
“They told us to wait three months for an answer,” Paulo said in a recent email. “We still do not know how this will end.”