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The Danger of Do It Yourself Surrogacy Agreements
a blog by Suzanne Rico, March 12, 2014
Surrogacy is not for the faint of heart. As a mother who carried her first child to term and used a surrogate for the second, I am intimately familiar with the risks—and rewards—of having someone else carry your child. But as someone who was also a “do-it-yourself-er”—meaning I did not use a surrogacy agency—the story of a child in Great Britain who, effectively, now has two mothers after an independent surrogacy arrangement went sideways, is frightening.
Here are the basics of a complicated issue: a couple who couldn’t get pregnant naturally asked a friend to be artificially inseminated with the husband's sperm. The friend agreed, became pregnant and gave birth to a boy. While this all happened with no legal contract, everything was fine until the couple’s marriage broke up after the child was born and the divorcing couple headed to court to decide custody issues.
What London’s high court decided was shocking. Even though the surrogate did not want custody, the judge refused to give the woman any legal rights over the child. She could never become the boy’s legal mother, said the judge, adding that adopting him was not an option. And while eventually the judge did order “shared residence” for the boy (joint custody), effectively granting the woman parental responsibility, the child technically remains a ward of the court. Since surrogacy laws in the U.S. (which vary by state) are at best vague and at worst confusing, I asked Andrew Vorzimer, a surrogacy attorney based in Los Angeles, if something like this could ever happen here.
"I am afraid that these kind of incidents are not as aberrational as you would think. In fact, the number of do-it-yourself surrogacy cases and co-parenting arrangements are increasing at an alarming rate," warns Vorzimer. "We are seeing online co-parenting services matching parents who, in turn, are going to bathrooms in venues like Starbucks to produce a sperm specimen, hand it to the prospective mother, who then does an IUI in the Starbucks bathroom! Attempting to proceed in an arrangement like this on a do-it-yourself basis is reckless and people run the risk of everything from losing custody of their baby to being held liable for child support for a baby they never intended to parent."
Vorzimer's strong warning that taking the independent surrogacy road to parenthood is lined with possible landmines resonates with me. In an article I wrote last year for TheAtlantic.com, I compared my experience—which was trouble free—to another woman’s horror story of fraud, deceit, and financial ruin, detailing the problems created by the lack of structure or cohesiveness in U.S. surrogacy laws. And while many independent arrangements end well—often with a new baby in the intended mother’s arms—Dr. Robert Anderson of The Southern California Center for Reproductive Medicine, who has been doing surrogacy cases for twenty years, says it’s imperative to protect yourself.
"The best way to avoid problems is to work with an agency that is experienced in surrogacy arrangements or find an attorney who has successfully conducted these transactions in the past. Someone with experience and a proven track record in the field is key. In our practice, we keep a list of professionals on hand who can help our intended parents as they navigate a sometimes confusing and emotional path."