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.

The Problem With Surrogacy

The question was posed – I have a friend who cannot carry a baby to term. She produces eggs just fine, and a friend of ours who is like a sister to her offered to be a surrogate for free for her. There is no power dynamic at play and they’ve been non biological “sisters” their entire lives. Is this still problematic and should I try to talk them both out of it?

The answer is simple. Ever since I came to understand about in-utero bonding and mother child separation trauma, I have been against surrogacy. I know that there are many couples who chose this. In fact, among my in-laws, this was chosen for similar reasons.

A few more thoughts – from a mother – I grew my children in my body. I didn’t grow them to give them to someone else. Yes, I work, but at the end of the day, they know who mom is. Not some confusing arrangement of mom and “not really mom but kind of mom.” My children did not suffer separation trauma at birth. THAT is the difference.

Follow-up question – I know a lot of working mothers who aren’t constantly around their children, may I ask how is this different? Answer – Take some time to research the primal wound (there is a good book on this by Nancy Newton Verrier). It is not about being around a child constantly. It is that in those moments where we, as a species, reach out to our mother for comfort and nurture, we know on a primal level who that is, and it is the person who carried us and birthed us. That’s why separation after birth trauma exists for adoptees, children who were put into the system at birth and orphans. They may have a mother figure, but it is not who birthed them.

Read up on why surrogacy contracts exist and the numbers of people whose relationships break apart because of surrogacy and jealousy. Even sisters. Then what? The baby is away from who the baby thinks is mother.

The best we can do is chose not to incubate babies for other people as this will traumatize them. A fact proven by MRI is that babies separated from their mothers due to the need for them to be placed in the NICU, as well as in adoption and in surrogacy, will suffer brain changes. The difference with the NICU example, is that the parents aren’t deliberately causing that brain change. It is due to a medical necessity.

Clueless response – Every one gets separated from the body in which they grew, so I’m not understanding. Answer – Technically yes, when you are born, you are no longer physically connected to the body of person who carried while you grew. But then that person doesn’t generally go away – except in cases like adoption, surrogacy, etc.

Argument continues because the two women in question are “like sisters.” Response – They are “like sisters”, not actual family. You can be like whatever. Doesn’t change blood. That said, the child deserves their mother – ACTUAL mother. Who would be on the birth certificate? The egg donor or the birth parent? A child deserves to know their biology and this is just messy.

Another thing to consider is that their “inseparable” relationship may change drastically after the baby is born. It’s pretty common for infertile APs (or infertile people who use surrogates) to develop an awful case of fragility once they have that baby in their arms. It’s in fact the main reason that the vast majority of “open adoptions” close within the first 5 years.

One last point because this has a lot of comments but I think this is worth sharing – How would your friend feel is this pregnancy killed her “sister”? Or if her “sister” had to terminate to keep herself alive? What if her “sister” carries to term, but has lifelong affects on her health that diminish her quality of life? No one should be using another person’s body like this. Pregnancy is not some magical, easy thing. It can be incredibly hard on a person’s body. It can kill people or leave them disabled for life.

Finally, just some background on why the question was asked – The “sister” is insisting. She says her experience being pregnant was “magical” and that she would be pregnant all the time if she could (but she’s also done growing her family, as she doesn’t want to raise any more of her own kids). She said it would “be an honor” to be able to be the person to help her sister grow her family, too. They’re both in their early 30s. I know they’ve spoke about her health being #1 priority during pregnancy and they’re both pro-choice.

We hang out as a group often and I am simply an observer in their conversations about it, as I do not want to speak on things of which I’m ill informed. I asked this question because I want to have some valuable knowledge about the subject the next time we get together, instead of just sitting there listening to something go down that could possible end up being catastrophic. So far, they’re completely on the same page. We all love each other very much and wouldn’t want anything negative to happen to the others. If that means an abortion needs to happen, then she is okay with that.

One last thought – You cannot make life long promises that the “sister” will remain in this child’s life. I had a family member who did this with her best friend. After a lifetime of friendship, they have not spoken since the baby was born. And if their friendship ends, the child will always wonder why they were handed off, like it was nothing. I suggest that you not support your “friends” baby swap. Traumatizing an infant should outweigh any of their selfish wants. Advise to your friend who can’t carry to term to get therapy and deal with it.

>Link< worth reading – “I was an altruistic surrogate and am now against ALL surrogacy.”

Loved In The Womb

A woman writes – Feeling so selfish. I want to keep my baby. I’ve been matched with a family. But now I feel my baby kicking. Also, my life is getting better and I want to keep my child. What do I do, please tell me ? They’ve paid my rent and helped me out. I don’t want to be selfish. I have grown so much in love with my unborn. This prospective adoptive family is well off financially. I am troubled by thoughts that they cannot possibly love my baby more than I do.

Right off – No one will ever love your child better than you. Ever.

Keep your baby, and block the adoption agency, don’t answer calls don’t sign anything, heck change your phone number if necessary. Your baby, not theirs. They will be able to steal another baby, don’t put yours thru that.

No, they cannot possibly love your baby more than you do. I am adopted and I ache for my birth mother daily and I’m 26 years old with two kids of my own.

It’s not selfish to keep your baby from experiencing adoption trauma.

No “open adoption” agreement is legally binding.

Forget about this couple, any baby will do. 

From a birth mom – I wish I hadn’t let those around me pressure me into feeling like I “owed” someone else MY son.

Having more money does not mean they can be better parents to your child.

No one paying your rent or for anything else is entitled to your baby because of it.

They have a motive and that motive is self serving and is totally selfish. None of it is in the best interest of your child.

Their disappointment will fade, your love will only grow. Do the best for you and your baby.

I’ve mentioned this organization before and will mention them again because they have helped so many women keep and therefore raise their own babies – Saving Our Sisters. They are dedicated to supporting all members of expectant families who are considering adoption to NOT apply a permanent decision to a temporary situation.

Shonda Rhimes – Adoptive Mother

Shonda Rhimes and daughter, Harper

I read that Shonda Rhimes said to Time magazine, “I don’t think anybody has has kids is fully present at work.” She goes on to say “The idea of pretending that we have no other life is some sort of fantasy out of the 1950s, where the little lady stayed at home.” How could someone who’s responsible for at least one small, vulnerable human – responsible in a real way, not in a ’50s-dad way – ever be fully present when that child is out of earshot ? My kind of woman, I wanted to know more, especially when I learned that she adopted her daughters.

We don’t watch commercial TV networks or streaming content and so, I really don’t know anything about Shonda Rhimes work in film (we are stuck in dvd land for the time being). That she is famous or inspiring in general – and she is both – there is still the sticky issue that troubles me the most – separating any baby from the mother who’s womb that baby grew in but it is going to happen and I don’t see adoption ending as a practice any time soon.

Shonda says it was 9/11 that convinced her that she was lacking the experience of motherhood. She says that “Nine months and two days after 9/11, my daughter was born. I named her after Harper Lee. Now I can’t remember what I did with my time before she got here.” Shonda is now mom to three daughters – Harper in 2002, she adopted daughter Emerson in 2012, and welcomed daughter Beckett in 2013 via surrogate. (None of which changes the nature of my own concerns). 

She admits that, “There is no such thing as balance. That I will say right away,” as she told Business Insider in 2017. “If you are a working mother you are often not there as much as you’d like to be. I said this once somewhere, that if I’m standing on set watching some amazing thing being shot, then I am missing my daughter’s science fair. Or if I’m at my daughter’s dance recital, then I miss Sandra Oh’s very last day, and very last scene being shot on Grey’s Anatomy… Those are the trade-offs.”

Finding Empathy

Gabrielle Union, daughter Kaavia
and husband Dwayne Wade

I will admit that I have become generally against surrogacy as part of my own journey to understand adoption as it has manifested in my own family. However, in reading Gabrielle Union’s beautifully written essay in Time magazine – Hard Truths – I ended up feeling a definite empathy for her situation and believe the outcome to have been perfect for the situation.

Within my spiritual philosophy it is believed, as also is stated in Hindu Scripture, that “Mind, being impelled by a desire to create, performs the work of creation by giving form to Itself.” Some of my ability to empathize may have also arisen from experiencing secondary infertility in attempting to conceive my oldest son. I believe that Assisted Reproduction is a knowledge granted to man by Mind and so, many children are today being created using these medical techniques. This is a fact of modern life.

Gabrielle suffers from adenomyosis in which endometrial tissue exists within and grows into the uterine wall. Adenomyosis occurs most often late in the childbearing years. So in reading the Time magazine article I found poignant her experience of multiple miscarriages and various medical interventions in her many attempts to conceive. Many women then turn to adoption and it is often noted that the infertility itself must be dealt with in therapy before even considering adoption because an adopted child will never be that child you would have conceived and carried through a pregnancy to birth.

My objection to surrogacy is my awareness of how the developing fetus begins bonding with the gestational mother during pregnancy. Gabrielle writes of her awareness of this disconnect with clarity – “the question lingers in my mind: I will always wonder if Kaav would love me more if I had carried her. Would our bond be even tighter? I will never know . . .” She goes on to admit that when she met her daughter, they met “as strangers, the sound of my voice and my heartbeat foreign to her. It’s a pain that has dimmed but remains present in my fears that I was not, and never will be, enough.” She ends her essay with “If I am telling the fullness of our stories, of our three lives together, I must tell the truths I live with.” It seems healthy and realistic to my own understandings.

As the mother of donor conceived sons, I can understand the complex feelings. I can remember distinctly feeling less entitlement to my sons than my husband since it was his sperm that created them. I am also aware of adoptee trauma from that separation from their natural mother. Both of my parents were with their natural mothers for some months before they were surrendered for adoption. I think I see this issue in a couple of photos I have managed to obtain from their early years.

My mom held by a nurse from the orphanage she had been left in for “temporary care,” while my grandmother tried to get on her feet. My mom appears to be looking at
her mother in this photo.
I notice this expression on my baby dad’s face.
I wonder if my grandmother was there and was
he puzzling about her presence ? I can’t know
but it has caused me to ponder.

I will add that Union’s surrogate was of a different race. Another issue with surrogates is that they often become emotionally attached to the baby growing in them. Gabrielle describes her surrogate and the surrogate’s husband as “free spirit” people. She says at the time she met her surrogate in person, “The first thing I noticed was a nose ring. Oh, I thought, she’s a cool-ass white girl.” The surrogate wasn’t bothered at all – there was an excitement to her voice when she said, “This is such a trip. I have your book on hold at four different libraries.” She must have been referring to Gabrielle’s first collection of essays, We’re Going to Need More Wine, which sparked powerful conversations by examining topics such as power, color, gender, feminism, and fame through her stories.

Carrie Thornton, Dey Street’s (the publisher) VP and Editorial Director says of the new book, You Got Anything Stronger?, that it is “a book that tugs at the heart, feels relatable, and . . . you see her for exactly who she is. . . ” I would agree having read this story.