I Want To Put A Baby In You: Underground Surrogacy And The Burger King Baby
When surrogacy laws lead to unintended consequences, we need to rethink those laws and find a better way to protect all parties.
A stock photo – not the actual Burger King baby.
Last month, an English court held that a surrogate to an “underground” arrangement could nevertheless keep custody of the baby she carried. This was despite the fact that the surrogate was not genetically related to the child. Instead, she was hired via a “secret” matching service and matched with a gay couple. They hoped to be parents through surrogacy for a second time.
The intended parents and surrogate met only once for 30 minutes. Unfortunately, the meeting was at a Burger King. And now, this poor child is forever linked to the fast-food franchise.
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After the meeting, the surrogate was flown to Cyprus. (As I mentioned previously, Cyprus is a hot destination for surrogacy arrangements.) There, she underwent the transfer of two embryos to her uterus. The eggs were from a donor, and one was fertilized by one of the intended parents and the second egg was fertilized with sperm from the other intended parent. The transfer was successful, and the surrogate became pregnant with twins. But sadly, she later miscarried one of the babies.
Issues continued to mount. The intended parents missed payment deadlines. The surrogate learned that the couple’s first surrogate had a negative review of the intended parents. Ultimately, the surrogate decided to keep the remaining child. She lied, and told the intended parents that she had miscarried both babies. But she was caught when the intended parents saw her very pregnant toward the end of the pregnancy.
The intended parents brought legal action against the surrogate to try to obtain their child. But they also had unclean hands. They had offered to “pay” the surrogate 9,000 pounds in exchange for carrying the baby. While British law allows “reimbursement” of expenses to a compassionate surrogate, no “paying” of a surrogate is permitted. Additionally, the court held that the surrogate herself had a learning difficulty that made her consent to the agreement invalid.
Ultimately, the court awarded full custody to the surrogate—I hope that learning difficulty isn’t too severe—while the intended parents get very limited visitation rights: one weekend every eight weeks.
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While it sounds shocking to award a surrogate the parental rights over a child to which they have no genetic connection, this unfortunately happens throughout the world. Even in the United States. And “underground” surrogacy arrangements are not unusual.
China’s Thriving Underground Industry. China is notorious for its underground surrogacy industry. This is partially due to China’s decision to phase out of its One Child Policy. And like people in other advanced economies, many Chinese couples have focused on their careers instead of having children early in life. As a result, surrogacy is a skyrocketing method for family formation.
But the Chinese Ministry of Heath all but outlawed surrogacy in 2001. So the estimated 10,000 surrogacy births in China a year are all via its underground surrogacy industry. And due to the illegality of the arrangement, intended parents in China can lack legitimate parental rights to their children born via surrogacy.
In a recent Chinese case, a couple used a surrogate to have twin girls after discovering that the wife was infertile. Unfortunately, the husband died of cancer a few years after the children’s birth. His parents demanded custody of their grandchildren and won, based on the fact that the intended mother was neither genetically related to the children nor had adopted them.
When the girls were five, after a long appeal, the intended mother won her children back. The judge noted that the surrogacy was illegal but that the best interest of the children must be considered. In this case the judge determined that the relationship between the mother and her illegally-conceived daughters was of step-mother and child and was a better fit for the children than being raised by their elderly grandparents. The court awarded custody to the intended mother on that basis.
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It Happens To U.S. Too. Surrogates change their minds in the United States as well. In the Robinson case, a gay couple in New Jersey asked the sister of one of the men to carry their children for them. Like the China case, this one also involves twin girls. The children were not related to the sister, but the result of an anonymous egg donor and the sperm from the spouse of her brother. After the girls were born, the relationship between the surrogate and the intended parents deteriorated.
With the assistance of anti-surrogacy attorney Harold Cassidy, the surrogate brought suit for parental rights … and won! When the girls were five, again, similar to the China case, the intended parents won custody of the girls based on the best interests of the children.
New Jersey is also the venue for one of the first surrogacy disaster stories. But that case—called the Baby M case—involved a traditional surrogacy (where the surrogate is genetically related to the child she is carrying). So many had higher hopes for Robinson.
Regulations on surrogacy may have their place. However, when the laws don’t result in the intended consequences, we need to rethink those laws and find a better way to protect all parties. (As we all learned from Jurassic Park, life finds a way).
Ellen 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 [email protected].
