A battle between a British surrogate mother and a California couple who allegedly demanded she abort one of the twins she is carrying will have no real winners, but at least two losers, experts say — the twins and surrogate parenting itself.
The case involves Helen Beasley, a 26-year-old surrogate mother who is six months pregnant, and is suing Charles Wheeler and Martha Berman because, she claims in legal papers, they backed out of their agreement when she refused to abort one of the twins she is carrying.
The couple denies the charge, but the case, involving the Internet, possible abortion and echoes of last winter's battle over American twins adopted illegally in Britain, has been caught in the media spotlight.
When a ‘Private Matter’ Turns Into a ‘Media Campaign’
"What makes this case such a media frenzy is that society frowns upon people abandoning children," said Shirley Zager of the Organization of Parents Through Surrogacy in Gurnee, Ill. "And then you throw in the abortion issue and you have anti-abortion groups weighing in on that matter. But in my opinion, Helen Beasley made a huge mistake by turning this into a media campaign.
"I believe the babies have been exploited — their privacy was invaded, the parents' [the California couple's] names were revealed," Zager continued. "In a case like this, surrogacy has unfairly received a black eye, and my fear is that legislators will look at this and think we, or those of us who run private surrogate parenting organizations, are improper and that we don't handle things properly."
The case began after the couple met Beasley on a surrogate-parenting Web site last year. In March, Beasley underwent in-vitro fertilization in California with Wheeler's sperm and eggs from a donor selected by the couple. In the written contract, the couple agreed to pay Beasley $20,000 to carry their child.
Wheeler and Berman, Beasley says, only wanted one baby, not two, and both sides had a verbal agreement for a "selective reduction" where one fetus would be aborted before the 12th week of pregnancy.
Beasley claims she told Wheeler and Berman she was pregnant with twins in her seventh week, but that they didn't tell her to have a selective reduction until she was in her 13th week.
At that point, Beasley says she refused to have an abortion out of concern for her own health and has filed two lawsuits. The first, filed in San Diego Superior Court, is for fraud and breach of contract and emotional distress; the other was filed in family court and seeks to revoke the couple's parenting rights so Beasley herself can find parents for the twins she plans to carry full-term.
"Their parents don't want them. They've made that very clear," Beasley told ABC San Diego affiliate KGTV in an interview. "You can't help but get attached to them. I just want what's best for them."
Other Parents Ready?
Wheeler and Berman say they were not trying to force Beasley into an abortion and had no plans to abandon the unborn fetuses at all. In a statement Sunday through their attorney, Diane Michelsen, they said they informed Beasley that they would find a couple to adopt the twins when they were born before she filed the suit and approached the media.
"No one forced Helen to do anything — she was not forced to enter into a contract, she was not forced to undergo the pregnancy, she was not forced to have an abortion or a reduction," the statement read. "There was never any possibility that these children would be abandoned. … There has been and continues to be a fully qualified couple who is ready, willing and able to immediately accept custody of the children by taking over the surrogacy contract. … Ms. [Theresa] Erickson knew this before she went to the media. But she chose to file a lawsuit and tell the media rather than us."
The couple also criticized Beasley and Erickson, for turning a "private matter which has no place in the media" into a media circus. Michelsen said they had not even received a copy of the lawsuit. Beasley and Erickson said the couple never told them about their intentions to find an adoptive couple.
An Avoidable Situation?
While experts say it is impossible to foresee the all difficulties and issues that may develop in a surrogate parenting arrangement, they believe the legal battle between Beasley and Wheeler and Berman could have been prevented.
"If they knew in the beginning about the one-child arrangement and selective reduction, why wasn't any of this documented in her written agreement?" asked Zager. "Why did Ms. Beasley agree to sit on a table and have multiple embryos planted in her? Why did she agree to travel to the United States to be a surrogate, knowing she would not get support from the British government, which is hostile to surrogacy anyway and what did she expect to get out of this? You have to wonder whether she had the proper guidance and counseling before agreeing to this [situation]."
Perhaps, one doctor says, Beasley and the California couple could have avoided their current battle by going through an agency instead of a private surrogate parent organization or Web site.
"It's impossible to put all the situations that may arise [in surrogate parenting] in a contract," said Dr. John Sampson, director of The Thorsen's Surrogate Foundation of Portland, Ore. "But at least with us, all contracts are written and reviewed by all parties. There can be revisions, but they must be added to the contract and reviewed by the parties. If you have a verbal agreement, that's when you start running into all kinds of problems."
Sampson believes the downside to a using a private agency or the Internet in surrogate parenting is that there is no formal structure to make sure both sides — the couple and surrogate mother — fully understand the arrangement and are given the proper guidance.
"With agencies, there are people who are looking out for the interests of both parties involved," he said.
However, Zager pointed out that there have been both successful — and disastrous — surrogate parenting agreements made through agencies and the Internet. Neither, she said, is more prone to legal disputes than the other.
"Most of the situations work out very, very well," Zager said. "Ninety-nine percent of the arrangements work well, and some beautiful things have come from surrogate relationships, but unfortunately you never hear about that. It's the aberrant relationships get the media attention and that's a shame."
California Courts on the Intended Parents' Side
Both Zager and Sampson noted that California case history is not on Beasley's side. Under state law, parental rights in surrogate-birth agreements go to intended parents, not the surrogate mother. The California Supreme Court's 1993 decision in Johnson vs. Calvert — where surrogate mother Anna Johnson unsuccessfully sought custody of the child she carried for California couple Crispina and Mark Calvert — supports arguments that Wheeler and Berman ultimately have the right to decide who will care for the unborn twins. The U.S. Supreme Court refused to hear the case.
A hearing in family court for Beasley and Wheeler and Berman is scheduled this week. Lawyers from both sides say they want to settle the parenting rights dispute before Beasley gives birth.
Surrogacy refers to a contract in which a woman carries a pregnancy “for” another couple. Number of infertile couples from all over the World approach India where commercial surrogacy is legal. Although this arrangement appears to be beneficial for all parties concerned,there are certain delicate issues which need to be addressed through carefully framed laws in order to protect the rights of the surrogate mother and the intended parents.
Keywords: Surrogacy, commercial, altruistic
The ever-rising prevalence of infertility world over has lead to advancement of assisted reproductive techniques (ART). Herein, surrogacy comes as an alternative when the infertile woman or couple is not able to reproduce. Surrogacy is an arrangement where a surrogate mother bears and delivers a child for another couple or person. In gestational surrogacy, an embryo, which is fertilized by in vitro fertilization, is implanted into the uterus of the surrogate mother who carries and delivers the baby. In traditional surrogacy, the surrogate mother is impregnated with the sperms of the intended father artificially, thus making her both genetic and gestational mother. Surrogacy may be commercial or altruistic, depending upon whether the surrogate receives financial reward for her pregnancy.
Commercial surrogacy is legal in India,(1) Ukraine, and California while it is illegal in England, many states of United States, and in Australia, which recognize only altruistic surrogacy. In contrast, countries like Germany, Sweden, Norway, and Italy do not recognize any surrogacy agreements. India has become a favorite destination of fertility tourism. Each year, couples from abroad are attracted to India by so-called surrogacy agencies because cost of the whole procedure in India is as less as one third of what it is in United States and United Kingdom (10-20 lakhs).
Is Surrogacy Profitable for All?
At a glance, surrogacy seems like an attractive alternative as a poor surrogate mother gets very much needed money, an infertile couple gets their long-desired biologically related baby and the country earns foreign currency, but the real picture reveals the bitter truth. Due to lack of proper legislation, both surrogate mothers and intended parents are somehow exploited and the profit is earned by middlemen and commercial agencies. There is no transparency in the whole system, and the chance of getting involved in legal problems is there due to unpredictable regulations governing surrogacy in India.
Although in 2005, ICMR issued guidelines for accreditation, supervision, and regulation of ART clinics in India, these guidelines are repeatedly violated.(2) Frustration of cross border childless couples is easily understandable who not only have to cope up with language barrier, but sometimes have to fight a long legal battle to get their child. Even if everything goes well, they have to stay in India for 2-3 months for completion of formalities after the birth of baby. The cross border surrogacy leads to problems in citizenship, nationality, motherhood, parentage, and rights of a child. There are occasions where children are denied nationality of the country of intended parents and this results in either a long legal battle like in case of the German couple with twin surrogate children or the Israeli gay couple who had to undergo DNA testing to establish parentage or have a bleak future in orphanage for the child. There are incidences where the child given to couple after surrogacy is not genetically related to them and in turn, is disowned by the intended parent and has to spend his life in an orphanage.(3)
If we look upon the problem of surrogate mothers, things are even worse and unethical. The poor, illiterate women of rural background are often persuaded in such deals by their spouse or middlemen for earning easy money. These women have no right on decision regarding their own body and life. In India, there is no provision of psychological screening or legal counseling, which is mandatory in USA. After recruitment by commercial agencies, these women are shifted into hostels for the whole duration of pregnancy on the pretext of taking antenatal care. The real motive is to guard them and to avoid any social stigma of being outcast by their community. These women spend the whole tenure of pregnancy worrying about their household and children. They are allowed to go out only for antenatal visits and are allowed to meet their family only on Sundays. The worst part is that in case of unfavorable outcome of pregnancy, they are unlikely to be paid, and there is no provision of insurance or post-pregnancy medical and psychiatric support for them. Rich career women who do not want to take the trouble of carrying their own pregnancy are resorting to hiring surrogate mothers. There are a number of moral and ethical issues regarding surrogacy, which has become more of a commercial racket, and there is an urgent need for framing and implementation of laws for the parents and the surrogate mother.(4)
Assisted reproductive technology legislation
The Indian government has drafted a legislation, earlier floated in 2008, finally framed as ART Regulation draft bill 2010. The bill is still pending with Government and has not been presented in the Parliament. The proposed law has taken consideration of various aspects including interests of intended parents and surrogate mothers. The proposed draft needs to be properly discussed, and its ethical and moral aspect should be widely debated by social, legal, medical personal, and the society before any law is framed.
The bill acknowledges surrogacy agreements and their legal enforceability.(5) The surrogacy agreements are treated at par with other contracts under the Indian Contract Act 1872 and other laws applicable to these kinds of agreements. Both the couple/single parent and surrogate mother need to enter into a surrogacy agreement covering all issues, which would be legally enforceable. Some of the features of proposed bill are that an authority at national and state level should be constituted to register and regulate the I.V.F. clinics and A.R.T centers, and a forum should be created to file complaints for grievances against clinics and ART centers. The age of the surrogate mother should be 21-35 years, and she should not have delivered more than 5 times including her own children. Surrogate mother would not be allowed to undergo embryo transfer more than 3 times for the same couple. If the surrogate is a married woman, the consent of her spouse would be required before she may act as surrogate to prevent any legal or marital dispute. A surrogate should be screened for STD, communicable diseases and should not have received blood transfusion in last 6 month as these may have an adverse bearing on the pregnancy outcome. All the expenses including insurance of surrogate medical bill and other reasonable expenses related to pregnancy and childbirth should be borne by intended parents. A surrogacy contract should include life insurance cover for surrogate mother. The surrogate mother may also receive monetary compensation from the couple or individual as the case may be for agreeing to act as such surrogate. It is felt that to save poor surrogate mothers from exploitation, banks should directly deal with surrogate mother, and minimal remuneration to be paid to the surrogate mother should be fixed by law.
The surrogacy arrangement should also provide for financial support for the surrogate child in case the commissioning couple dies before delivery of the child, or divorce between the intended parents and subsequent willingness of none to take delivery of the child so as to avoid injustice to the child. A surrogate mother should not have any parental rights over the child, and the birth certificate of the baby should bear the names of intended parents as parents in order to avoid any legal complications. Guidelines dealing with legitimacy of the child born through ART state that the child shall be presumed to be the legitimate child of the married/unmarried couple/single parent with all the attendant rights of parentage, support, and inheritance.
The ART clinics should not be allowed to advertise for surrogacy for its clients, and couples should directly seek facilities of ART Bank. The intended parents should be legally bound to accept the custody of the child/children irrespective of any abnormality in the child/children. Confidentially should always be maintained, and the right to privacy of the donor as well as surrogate mother should be protected. If a foreigner or NRI is seeking surrogacy, they should enter an agreement with written guarantee of citizenship for the child from their government, and they should also appoint a local guardian who would be legally responsible for taking care of the surrogate during and after the pregnancy till the child is delivered to the foreigner couple or reaches their country. Sex-selective surrogacy should be prohibited, and abortions should be governed by the Medical Termination of Pregnancy Act 1971.(6)
It seems ironical that people are engaging in the practice of surrogacy when nearly 12 million Indian children are orphans. Adoption of a child in India is a complicated and a lengthy procedure for those childless couples who want to give a home to these children. Even 60 years of Independence have not given a comprehensive adoption law applicable to all its citizens, irrespective of the religion or the country they live in as Non-Resident Indians (NRIs), Persons of Indian Origin (PIOs) or Overseas Citizens of India (OCIs). As a result, they resort to the options of IVF or surrogacy. The Guardian and Wards Act, 1890 permits Guardianship and not adoption. The Hindu Adoption and Maintenance Act, 1956 does not permit non-Hindus to adopt a Hindu child, and requirements of immigration after adoption have further hurdles.(7)
There is a strong need to modify and make the adoption procedure simple for all. This will bring down the rates of surrogacy. Altruistic and not commercial surrogacy should be promoted. Laws should be framed and implemented to cover the grey areas and to protect the rights of women and children.
Source of Support: Nil,
Conflict of Interest: None declared