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Surrogacy behind the headlines

1 March 2010
By Dr Elly Teman
Postdoctoral researcher in the Dept. of Anthropology and at the Penn Center for the Integration of Genetic Healthcare Technologies at the University of Pennsylvania
Appeared in BioNews 547
Ever since the New York Times published its front-page article on surrogacy cases gone awry (1) there has been much discussion of the need for comprehensive surrogacy regulation. I agree that regulation is important, but we are not discussing the most fundamental issue at hand: the human experiences that make or break surrogacy relationships. What common factors can be identified behind the small number of surrogacy cases that wind up in court? Since there have been so few cases of surrogates refusing to relinquish throughout the history of contemporary surrogacy, the common factors in those cases can be easily highlighted.

Is it a story of prenatal bonding and a natural, instinctive maternal love that women cannot control during pregnancy because of their female physiology? We all know the story of Baby M, and this infamous court case has had such a strong impact on popular perceptions of surrogacy that we are often quick to believe that the Baby M case is not the minority but the rule. We instinctively assume that all surrogates who take their commissioning couples to court began to have misgivings about the arrangement after feeling those first fetal movements. But what of the other thousands of surrogates who did not bond with the babies they carried and did not take their couples to court? And was maternal-fetal bonding really what led the surrogates in these court cases to have misgivings?

If we look at the Amy and Scott Kehoe case (2) as an example, it is essential not to overlook that the surrogate, Lachelle Baker, had already been a surrogate several times before and relinquished the babies to the intended parents. In the footage from the initial custody hearing in which Ms Baker was to relinquish her custody to the Kehoes, one can distinguish visible shock on her face when she first heard the intended father testify to his wife's history of mental illness and drug use. I am not defending Ms Baker, and I have nothing but sympathy for the Kehoes, but it all began with a breach of trust.

Trust is the most basic ingredient in surrogacy arrangements. Intended parents entering into these agreements trust their surrogate to take care of their baby in utero, feed it, get proper prenatal care, be truthful about their own conduct during the pregnancy, and to be up front before the agreement is finalised about any past events that might influence their decision to work with one another (such as past drug abuse or criminal charges). Surrogates also trust the intended parents to be up front with them about who they are. After all, the surrogate is making them into a family, and she wants to know who and what this family is about. The surrogate may be being paid for her efforts but, to her, she is giving this couple a tremendous gift that surpasses any monetary exchange. Nurturing that trust begins before the agreement in finalised and needs to continue throughout. When a surrogate interprets a action by the intended parents as a breach of trust, it is then misgivings often start. Going to court to retain the babies is at the extreme end of this spectrum of insult and revenge, but it all begins with the same building blocks.

I don't know what went on behind the scenes of the Kehoe case or any other case featured in the headlines lately. Most of my experience with surrogacy is positive. During my years of anthropological fieldwork among surrogates and intended parents, I have learned that surrogates need to feel what they are doing for their intended parents is appreciated. If the surrogate feels they have disrespected her and do not see the value of what she is giving them beyond the contractual exchange then it casts the whole surrogacy experience as a rental agreement, not a gift exchange. And it is when these views clash - when the surrogate sees herself making a family and giving a gift while the intended parents treat her as a paid worker or worse - that surrogacies go awry.

Taking this notion further, it is easy to understand why other headline-making cases have occurred between siblings. True, in the NJ case the surrogate had never given birth before - a serious 'no-no' in the surrogacy world. Still, it is unsurprising that the case is between her and her brother. If surrogacy among strangers is predicated upon trust and broken by perceived betrayal, then it is more so among siblings who are doing it out of love and familial commitment. As anyone who has siblings knows, we may love our siblings with intensity and want to go to great lengths to make their dreams come true but, when we are betrayed by them, it is just as intense.

So in surrogacies where everything goes well and all parties are happy with the outcome, there is an underlying understanding and feeling of trust. Whether it is a trust based upon upholding contractual obligations or, as I have seen in some of the surrogacy agreements I have studied, a trust based on the deep bonds of mutual commitment, there is still the same idea of each side reciprocally meeting their different expectations. And, when surrogacies go awry, it usually begins with the surrogate's deeply hurt feelings after she believes that the intended parents have treated her badly. It is a story of insult and revenge: the surrogate does not think that these people deserve the gift she has bestowed upon them because they have treated her with disrespect.

How can intended parents entering surrogacy arrangements make sure that their own case does not end up in court? Attorney Melissa Brisman, who oversees hundreds of surrogacy arrangements each year, says that, to have a successful surrogacy arrangement, intended parents need to 'have all the proper legal documents in place and use a well known, well run fertility clinic. But taking the time and care to select a gestational carrier that meets their needs emotionally and personally can be an enormous factor in the outcome of their relationship'. In summary, surrogacy is a two-way street that involves a careful balance of emotions and expectations from both sides. My advice? If intended parents want to ensure a successful surrogacy journey they need to understand their surrogate's expectations in advance, to be upfront with her about who they are, and give her the credit and respect she deserves.

Dr Elly Teman is author of Birthing a Mother: The Surrogate Body and the Pregnant Self (buy this book from Amazon UK or Amazon USA), and she has contributed a chapter to Surrogate Motherhood: International Perspectives (buy this book from Amazon UK or Amazon USA).

Building a Baby, With Few Ground Rules
New York Times |  12 December 2009
What happens when surrogacy goes wrong: The recent Indiana surrogacy case in wider context
BioNews |  9 February 2010
21 February 2011 - by Leo Perfect 
A 61-year-old woman gave birth to her grandson in February because her daughter couldn't maintain a pregnancy. Kristine Casey, who may be the oldest woman to give birth to her grandson, volunteered to act as a surrogate after her daughter, Sara Connell, failed to bring two IVF pregnancies to term...
13 December 2010 - by Antony Starza-Allen 
The UK's High Court has granted legal parenthood to the parents of a child born using a surrogate in the United States to allow them to keep the child in the country....
15 November 2010 - by Rosie Beauchamp 
The London Women's Clinic (LWC) has reportedly received an application for fertility treatment by two gay men wanting to raise a child who wish to use one of the couple's sister as a surrogate....
11 October 2010 - by Nishat Hyder 
A couple from British Columbia, Canada, have been embroiled in a complex ethical battle after their surrogate refused their request to abort the fetus she was carrying. The couple made the request after tests revealed the baby would likely be born with Down's syndrome...
2 August 2010 - by Dr Sheelagh McGuinness 
Birthing a mother is a study of surrogacy arrangements in Israel. Elly Teman describes the complexity of these arrangements, paying particular attention to the relationship that develops between surrogates and intended mothers...
9 February 2010 - by Louisa Ghevaert 
A northern Indiana couple are the latest in a series of people to become embroiled in a legal battle in the US following the birth of a child conceived through surrogacy. They follow in the footsteps of a recent series of high profile and hard fought US legal parentage battles involving surrogate-born babies. As demand for surrogacy grows worldwide and its practice remains largely unregulated, surrogacy continues to raise difficult legal, ethical and emotional questions which a...
7 February 2010 - by Dr Sophie Pryor 
The Court of Appeals in Indiana, US, is to decide who is the legal mother of an 11-month old baby boy conceived by IVF and born to a surrogate. The boy's genetic parents, known in court records as T.G. and V.G, are a married couple from northern Indiana. The birth mother is the wife's sister, who agreed to carry the baby for the couple. The boy's father's name is listed on his birth certificate but his mother's name will not be added unti...
7 September 2009 - by Ailsa Stevens 
The UK's Department of Health last week launched a consultation on the regulation of ‘Parental Orders', which are used to transfer legal parenthood from the surrogate (and her husband or partner if she has one) to the couple who commissioned the surrogacy arrangement. Prior to the Human Fertilisation and Embryology Act 2008, only married couples were able to apply for a parental order, however, the new rules will extend this right to parents where there is no formal union, including unmarried...
12 January 2009 - by Louisa Ghevaert 
Pressure for a review of surrogacy law is mounting in legal, media and political quarters following the case of Re X & Y (Foreign Surrogacy) 2008 (reported in Bionews on 14 December 2008). The case - the first to test the law for British couples going abroad for surrogacy - has highlighted the...
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