By Tamar Lewin
July 5, 2014
At home in Lisbon, a gay couple invited friends over to a birthday celebration, and at the end of the evening shared a surprise — an ultrasound image of their baby, moving around in the belly of a woman in Pennsylvania being paid to carry their child.
“Everyone was shocked, and asked everything about how we do this,” said P, who spoke on the condition that neither his last name nor that of his husband, J, be used since what they were doing is a crime in Portugal.
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 P and J 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.
Continue reading the main story 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 P, 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 P and J’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.
Heather Rice, an Arizona mother of three, said her first surrogacy was “an experience so great I knew I wanted to do it again.” She had a very different experience the second time, when, after two miscarriages, a routine ultrasound showed that the 21-week-old fetus had a cleft in his brain.
“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.”
Continue reading the main story 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.”
Undeterred by Local Laws
For the Portuguese couple, the journey began when P 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, P and J 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, D. 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 P. “I cried when I saw the flight booking on the computer. I said: ‘Look, J. 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 D’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, J decided that was too much. Without telling P, 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,” P 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. J and P 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.
Continue reading the main story 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 D is the one asking.
“The information belongs to him,” P 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 D 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.”
J and P, 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 P, J and their son, who entered Portugal on his American passport. So far, efforts to register D 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,” P said in a recent email. “We still do not know how this will end.”