Legal Conflicts

Straight off, I will say that I am NOT in favor of gestational surrogacy. My primary objection is separating babies from the mother who’s womb they developed in. There is definitely an in-utero bond. I probably do know more families with donor conceived children than most ordinary citizens do. I know of situations where a surrogate was used. One in which the intended mother was actively undergoing chemotherapy at the time her twins were born and who did die when the twins were about 2 years old. They are being raised by their genetic father who donated the sperm in that assisted reproduction effort. I also know of a couple of women who simply didn’t want to wait any longer to have children with no husband in sight. They used both egg and sperm donations. BOTH carried their own children and I know them as awesome moms. These children are all 18 years old now including my youngest son.

The situation that inspired today’s blog regards couples from other countries entering into surrogacy contracts with women here in the United States. In this particular case, the intended parents have refused to come and get their twins for over a year now (they were born in February 2021). The surrogate and her husband are on the birth certificates as the parents but lack any legal custody because the surrogacy contract supersedes any hospital created birth certificate. The woman has both TikTok and Instagram accounts but both are private (possibly due to the legal complications) but I really don’t need to see them myself. The Instagram has a cute profile photo of the twins.

The United States is a destination country for couples who find they have to undergo surrogacy abroad due to the laws in their own country. Surrogacy is allowed in the United States for international patients by law. Not all of the states here are equally “friendly.” The website on LINK> International Surrogacy notes “surrogacy arrangements are legal in the following territories: Nevada, California, Texas, Arkansas, Illinois, Virginia, Florida, New Hampshire, Delaware, New Jersey, Tennessee, and Utah.” The states that ban surrogacy arrangements include Arizona, Michigan, New York, Indiana, Kansas, Louisiana, and Nebraska cautioning that surrogacy is even considered a criminal offence in some of them.

In the USA, a birth order is the legal document used to assign parentage to a child. These can be either a post- or pre-birth order that establishes the parental rights for the intended parents. This is key when undergoing surrogacy in the USA. Pre-birth orders can be started in the fourth month of pregnancy, whereas post-birth orders are granted on day 3 or 5 following the birth. This choice is very pricey for the intended parents – $95,000 to $290,000 – due in part to the fact that the US healthcare system is run by private businesses.

So back to our “trapped” surrogate and her husband. In order to have legal custody, they will have to go to court. They would have to sue for custody because simply being on the birth certificate doesn’t circumvent the surrogate contract in place. A complication of course is that they are not genetically related to these children and had no intention of parenting them to begin with. This even though they have been effectively raising these two babies for about a year. The intended parents have “broken” their contract but that doesn’t simply negate it legally.

Being a legal parent on a birth certificate does not always mean you have legal custody of your children – if there is another entity involved (like surrogacy, Div of Human Services/Child Protective Services with foster care, adoption until it is finalized, guardianship). It really depends on the country and this is the reason so many contracts, legal fees and lawyers are involved with situations such as surrogacy. Every situation is extremely unique.

Artificial Twinning

I didn’t know this was a thing – artificial twinning. Sadly, it often results in the family releasing the child to a second chance adoption (meaning the first effort has now failed). “Second Chance”… does this imply that EVERY adoption is basically just temporary and the first one is just your first “chance” at your “forever” home ?

As a Gemini, the idea of twins always fascinated me. My sister who was 13 mos younger than me was dressed like me for much of our youngest years. Eventually, she shot up and surpassed me in height and that attempt on the part of mother and grandmother ended. When my husband and I were utilizing reproductive technology to create our family, our first effort that produced a son came after a “vanishing twin” at the time my dad’s adoptive father died and I was 6 weeks along. With our second son, we definitely did not want twins because we felt that would be harmful for our older son. As it was, he was jealous and difficult in their younger years, but now they are the best of friends – thankfully.

Artificial or Virtual Twinning (as it is sometimes also called) is not a practice recommended by social workers. The conventional belief is that kids need their own spot in the birth order. Artificial or Virtual Twinning is having two siblings, that are not biological, within 9 months of one another. There are very valid reasons not to artificially twin. Reasons like sharing the first-born-ness [or whatever the birth-order], attachment-process being interrupted, being compared to one another like twins without the “benefits” of being twins, among other things.

Sometimes artificial twinning is done by adopting a child that is close in age to the child a family already has. Sometimes it’s done by adopting 2 children that are close in age, at the same time. The controversy about whether or not artificial twinning is a good idea rages on. The best recommendation is that families do not adopt 2 children at the same time, unless they are biologically related (in which case, unless they are naturally twins, it would not be what this blog is about).

Parents need time and resources to learn about their new child, help them adjust, and this is most easily done one at a time. Inevitable comparisons, and all the pitfalls of that, are inherent with raising artificial twins. Adopting a child with the purpose of creating a playmate for your child is never a good idea.

Finally, letting an adult adoptee who experienced this speak –

All my brother and I had as young children was each other. At six years old, our adoptive parents divorced over dad’s alcoholism, which had resulted in domestic violence. By all appearances only being able to conceive one much older bio son and then to adopt two babies so close in age was a desperate attempt to fix an already broken marriage.

My adoptive brother and I were as different as night and day in every way possible. Being forced to tell anyone who asked that we were twins but had different birth dates caused a lot of unnecessary gossip and confusion as we got older. I still have friends from Junior High who ask me on Facebook if we were really twins. There is no simple explanation as to why I wouldn’t have been telling the truth. Our identities were so closely meshed together that our individuality often got lost.

Tragically, after our parents divorced, my brother struggled for years with some serious mental health issues. Even as youngsters, I could see that he wasn’t and couldn’t totally bond to anyone in our family. The brother I had once thought I was close to has caused me a lot of shame and embarrassment with his repetitive bizarre behavior. I have felt those forbidden feelings of abandonment from a not so perfectly ideal adoption, as well as not being able to grieve over an absent adoptive father.

My birth siblings say I am just like my late birth mother in her mannerisms – right down to her laugh. My adoptive family could have certainly been a textbook case where nurture verses nature proved to be a fantasy. From my perspective, you fail as adoptive parents – if you try to mold us into that child you couldn’t have or somebody we are not.

Birth Order

My husband and I are both first borns and I see the personality traits are present in us. We both have a middle and a youngest sibling of the same gender that we are. Siblings are raised essentially in the same environment, so it could be assumed that we might be more like our brothers and sisters. Yet it appears that the same home environment makes up only 5-10% of our personality. Many of us would agree that we are somewhat or very different from our siblings. Genetic factors have more impact on our personality, maybe as much as 50%. Nurturing, how we are cared for must matter a lot.

Does birth order matter in adoption ? That is a question that I came to this morning’s blog with in mind. Does it matter if children are adopted out of their birth order ? My mom was the first born of her original mother and also the only child but was the youngest in the home she was raised in with an older brother who was also adopted. My dad was the first born and the oldest in the home where he was adopted. He grew up with a younger brother who was also adopted.

One study concluded that the rearing order of the children had little impact on personality except for conscientiousness, which was higher for children who were raised as first-born. The child’s sex had more impact than did rearing order.

Most adoptive families do not consider the impact that rearing order will have on infants who are first born to their biological parents, if they enter an adoptive home as the second or third child. If a child is an infant, it is assumed that such a child will have the characteristics associated with the rearing order in which they are placed. More often, adoptive families want to know the impact of adopting children out of age order on the children already there— especially on the oldest child or on several younger children when adopting an older child.

Sibling rivalry and the need for attention are very real factors in any multi-child home. I have seen it up close and personal with my two sons and have experienced a misplaced idealism upon my own reality that simply was not real by my youngest sister. I have seen frequently that the younger children often look up to the oldest. I have experienced first hand that parents expect the oldest to be an example of a “good” person – whatever that means in any family’s context.

Here is one reality some adoptive families face – maybe you have a larger age gap among your genetic/biological children. So you chose to adopt a child who can fill in the gap in age differences. Neither the oldest nor the youngest child’s position in your family is displaced by this decision. However, in any adoption of an older child, the chronological age of that child can be quite different from the child’s emotional age due to the trauma they have experienced. The reality you may find is that this new “middle” child is more like the youngest child in the family.

In any adoption – it is all about your expectations as an adopting parent. If you adopt a child who fits nicely into the age range where your children are right now, this newly adopted child may not blend in as well as you anticipated. Some precautions will be necessary when adopting an older child or when adopting a sibling group.