Family Law, Health Care / Medicine, Kids

I Want To Put A Baby In You: Trouble With Triplings

This unfortunate situation appears to be less of a legal matter and more a case of not fully anticipating and being prepared for the financial risks of the assisted reproduction process.

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David Beard (left), Nicky Beard, and their triplings (via stuff.co.nz)

David Beard (left), Nicky Beard, and their triplings (via stuff.co.nz)

Not only does assisted reproductive technology bring us miracle babies, it also brings us new vocabulary! “Triplings” (not a typo) are three babies from embryos of the same egg and sperm providers, conceived at approximately the same time, but carried to birth by different women. However, before digging into the fascinating and unfortunate predicament of a set of New Zealand triplings stuck in Mexico, a quick update on a previous case.

We have some news on the “Triplets Trouble” case I discussed here in early March. (That case involved actual triplets, not triplings.) Previously, in a dispute between a single deaf postal worker and a California surrogate, a court ordered that the intended father, C.M.—who demanded that one of the three children be aborted—nevertheless be recognized as the sole legal parent of the surrogate-born triplets. Since that ruling, a California appellate court has issued a stay on the lower court’s order, which also prevents C.M. from taking the triplets out of the state of California. C.M., who lives in Georgia, and who hired Californian Melissa Cook as a surrogate to carry his embryos—formed from his sperm and anonymous donor eggs—has been accused of being an unfit parent by Cook. Cook is seeking parental rights of the triplets.

It makes sense that the court would want to slow things down and make sure, at a minimum, that the babies will not be moving to another state while it addresses the allegations against C.M. However, the appellate court’s decision will be closely watched for ART law practitioners, given the serious ramifications if the court were to confer parental rights on a surrogate. Depending on how narrow the ruling is, it could have broad implications for thousands of would-be parents.

Kiwis in Mexico

Moving back to our New Zealand case, the latest drama involves the complications that advancing technology has brought us. David Beard, a prominent New Zealand attorney and founder of the law firm Legal Street—I have to admit that I’m a little creeped out by the blindfolded businessman on his website—and his husband Nicky Beard, after years of dreaming of building their own family, decided to use a Mexican surrogacy agency to realize that dream. After at least one failed embryo transfer to a surrogate, they decided to employ the services of more than one surrogate… at the same time. Two embryos were transferred to each surrogate, resulting in one surrogate carrying twins and the other a singleton pregnancy — creating possibly the first-ever triplings.

Unfortunately, the Beards and the triplings are currently stuck in Mexico. They claim to be out of money, in part due to the agency absconding with their funds, and unable to afford the required DNA testing and Mexican bureaucratic processes to obtain the triplings’ passports. There’s a lot going on here; let’s look at the different issues.

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1. Mexico’s Recent Surrogacy Ban. For a while Mexico was a popular, more affordable alternative to the United States for surrogacy. However, in late 2015 the state legislature in Tabasco, the only state in Mexico to allow surrogacy with foreign intended parents and gay men, voted to prohibit the practice. The legislature also added the requirements that a Mexican potential mother looking to use a surrogate must be between the ages of 25 and 40 and must present evidence that she is medically unable to gestate the child herself. In an environment where international fear and distaste of “surrogacy tourism” (citizens of another country flocking to more affordable countries that allow surrogacy) are growing, Mexico has followed suit after a number of countries – including Nepal and Thailand – instigated tighter surrogacy legislation in 2015.

But for the Beards, this change in the law does not seem to be their real issue. They have received assurances that because their surrogates were already pregnant when the law changed, they should still be able to establish parental rights and be able to take their babies home. From all interviews and accounts, the issue seems to be one of money and paying the costs of the Mexico bureaucrats as well as travel costs.

2. Swindling Agencies. The Beards claims that they relied on an agency in Mexico but that the agency disappeared with their money, and the agency is therefore to blame for their current predicament. Alice Torres, the Mexican surrogacy facilitator, disputes the Beards’ claims, pointing to the fact that (1) the Beards chose to use a hospital not approved by the agency, thus costing more than anticipated; and (2) the agency contract never contemplated anyone other than the Beards covering emergency birth medical costs. In a complicated set of facts, the Beards say they had no choice but to transfer to a hospital not recommended by the agency when they found the agency-recommended clinic located in a dangerous area, infested with cockroaches, and lacking the necessary qualified medical personnel – in addition to lacking the equipment necessary to treat their first born’s medical complications.

3. It’s All About The Money (And The Insurance). Without having seen the contract (both sides have refused to produce it for confidentiality reasons), it is hard to say who is in the right. But almost always, the cost of medical complications of a surrogate birth are the responsibility of the intended parents (just as they would be the responsibility of the natural parents in a non-surrogacy birth). Because this is a known serious risk, most U.S. agencies require that intended parents carefully ensure that the surrogate has medical insurance, and, if not sufficient, they purchase back-up medical insurance. Based on the Beards’ claim that they are currently $280,000 in debt, it is unlikely that they had medical insurance to cope with their baby’s medical complications (which included several costly weeks on life-support). And, of course, using multiple surrogates at once multiplied their risk of costly medical bills.

I certainly feel for the Beards and their little ones. Navigating the birth of a child in an unknown legal system is harrowing even for capable attorneys. Unfortunately, this appears to be less of a legal situation as opposed to one of not fully anticipating and being prepared for the financial risk of undergoing the assisted reproduction process. One of the Beards’ friends has created a fundraising page for them. Hopefully, with a little help, they will have their little ones back in the land of Kiwis shortly.

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Earlier: I Want To Put A Baby In You: Triplets Trouble

Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning. You can reach her at babies@abovethelaw.com.

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