Will The Travel Ban Cause Parents To Miss The Birth Of Their Children?
It's a potentially heartbreaking situation for these parents.
It has been a busy week and a half. It’s hard to keep up with all the news. And not just in the world of assisted reproductive technology! I’ve also heard the U.S. government has had some changes.
The Ban – Stopping Intended Parents From Seeing Their Child’s Birth. Trump’s latest controversial move (I understand there has been more than one) is the temporary ban of citizens from certain predominantly Muslim countries. It should come as no surprise that at least one of those citizens affected by the ban is an intended parent with a baby being carried by an American surrogate. Darlene Pinkerton—who is the owner of A Perfect Match, a California-based surrogacy and egg donation agency—is trying to counsel her terrified clients, who have an expected birth less than 90 days away. “It’s heartbreaking for them to miss the birth.” She also says that she has at least one intended parent who can’t get on a plane to come for the birth of his child, without risking being detained.
However, Pinkerton is trying to remain optimistic. She told me that she hopes “they determine something soon for those who did everything they were supposed to do when the last administration put in place travel restrictions.” In the meantime, intended parents are being advised, at a minimum, to arrange for a temporary guardian with power-of-attorney to care for their children while they are separated.
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It’s distressing enough to miss the birth and the early days of your child’s life. Let’s hope the ban is truly temporary and does not result in families being separated, including newborns from their parents, indefinitely.
Congrats George and Amal! Ugh. That was depressing. Let’s talk about something lighter. Thanks to my usual reliable news sources, I understand that congratulations are in order for international human rights attorney Amal Clooney and her actor husband, George. Rumor has it that thanks to the miracle of assisted reproductive technology, the fabulous duo is expecting twins! The children are sure to be smart, charming, and worldly, and I am excited for the couple to experience parenthood.
A Ruling For the Intended Parent in the California Triplets Case. You may recall the case of Melissa Cook, a surrogate carrying triplets in California. Cook was asked by the single intended father to “reduce” the pregnancy, aka terminate one of the fetuses. But Cook refused. She then brought suit for parental rights over the child she refused to abort, “Baby C,” as well as a court determination as to whether the intended father was a fit parent for any of the children. A trial court rejected Cook’s petition in full and awarded parental rights to all three children to the intended father. Cook appealed, challenging not just the intended father’s right to parent the children, but the constitutionality of surrogacy generally.
This week, we heard from the appellate court. The court affirmed the decision that the intended father was the legal parent of the triplets. The court noted that “[p]ermitting a surrogate to change her mind about whether the intended parent would be a suitable parent—or requiring a court to rule on whether the intended parent’s conduct subsequent to executing an assisted reproduction agreement is appropriate for a prospective parent—would undermine the predictability of surrogacy arrangements.”
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The court further rejected Cook’s claims of surrogacy being unconstitutional. It disagreed with her argument that surrogacy more broadly is degrading to women, and quoted California authority that protects a woman’s right to enter into a surrogacy arrangement: “The argument that a woman cannot knowingly and intelligently agree to gestate and deliver a baby for intending parents carries overtones of the reasoning that for centuries prevented women from attaining equal economic rights and professional status under the law.”
Fortunately, the California courts continue to show strong support for surrogacy. Now we just need all intended parents with California surrogates, no matter the country of these parents’ citizenship, to be able to make it to the birth of their children.
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, and Co-Director of Colorado Surrogacy, LLC, a surrogacy matching and support agency. You can reach her at [email protected].
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