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Accidental Surrogacy


by Rachel Lehmann-Haupt, Oct. 16, 2009

It’s a cinematic story line. A 40-year-old mother who suffered through four years of infertility and miscarriage finally gets pregnant only to learn that the child she is carrying is not her own. Last week, Carolyn Savage, a devout Catholic from Sylvania, Ohio gave birth to the biological child of Shannon and Paul Morrell of Sterling Heights, MI, as a result of an embryo mix-up at the fertility clinic at which both women were being treated.

It’s not the first time this kind of mix- up has occurred. In 1998, a white woman in Staten Island gave birth to two twins – one white and one black – because of mislabeled embryos. And in 2000, in the UK, a couple's hopes of having another child were dashed after their only embryo was implanted in another woman, who decided to terminate the pregnancy. The Savage case also comes on the heels of the closing of an IVF clinic at Ochsner Hospital in New Orleans because of a possible mix up in the labeling of over 100 frozen embryos. The embryos of Kim and Abraham Whitney were completely lost.

“The mother was expecting to get the phone call saying come in for your implantation and instead the doctor said, ‘we’ve lost your embryos,’” said Melanie LaGarde, the lawyer for the couple. “In consolation, the head of the clinic offered the Whitney’s a free round of IVF saying that the success rates of fresh embryos are better anyway, but my client doesn’t feel that makes up for the fact that in her mind the clinic lost her children.”

There are now 100,000 embryo transfers in the U.S. a year. As ART increasingly plays a role in the way we conceive our families, these strange and sad cases are becoming the reminders that in this brave new world, ethical standards don’t develop as fast as science. With the increasing medicalization of reproduction, there are new possibilities for us to lose control to doctors and the hands of human error, and it is raising new ethical and legal questions about the rightful role of a mother.

“It’s state by state, but the law does state that a woman who gives birth is the presumed mother unless there is a challenge,” says Theresa Erikson, a surrogacy and reproductive right’s lawyer based in San Diego, CA. “Savage could have said that she was the mother. Cases like these make us continually question the role of biology in motherhood.”

In the Savage - Morrell case, Caroline Savage gave the baby back to her biological mother in a spirit of moral good and altruism, but many cases have become legal battlegrounds. In the 2000 UK case, the couple won the case after charging that the IVF clinic “killed their baby." In 2004, Susan Buchweitz, a mother in San Francisco, CA, was awarded a million dollars after her embryo was implanted in another woman.

As a way to safeguard against these errors, the American Society of Reproductive Medicine is working to establish better guidelines on the way that fertility clinics should label and store embryos. In a statement, Robert Rebar, the executive director of the ASRM said that the Ohio and Louisiana cases "make it clear that there is still work to do.”

“As the leaders in reproductive medicine, we will redouble our efforts to develop systems that will assure our patients and the public that these kinds of mistakes will not happen," he said. “The time has come for policy makers to sit down with the leading experts in the field to explore ways we can codify our standards to give them additional regulatory teeth.”


Rachel Lehmann-Haupt ( is a journalist and the author of In Her Own Sweet Time: Unexpected Adventures in Finding Love, Commitment and Motherhood.