What Happens When A Surrogate Unknowingly Gets Pregnant With Her Own Child At The Same Time She Is Pregnant With Someone Else’s Child? That. Just. Happened.
Surrogates might soon see some strict 'no sex' clauses in their contracts.
The new word of the day is superfetation.
Assisted reproductive technology (ART) has led to many new and surprising situations. A child can be born years after one of her genetic parents — or maybe even both — have died. Or a woman can give birth to eight babies at once, or even her own grandchild. And a woman who turned to a fertility doctor for help conceiving can find out, years later, that the doctor is actually the genetic parent of her child, and her child has a shocking number of half siblings. So it’s with a mixture of surprise and an “oh yeah, it was just a matter of time till that happened,” that we look at our next wild ART scenario.
A Surrogate Became Pregnant With Her Own Baby And Someone Else’s At The Same Time? I always know when there’s a hot new ART story, because I get 50 emails and texts from friends and family passing along the article. (Thank you for thinking of me!)
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In this case, a surrogate in California agreed to carry a child for a Chinese couple. The doctor transferred one (and only one) of the intended parents’ embryos to the gestational carrier’s uterus. Everyone was delighted to see a positive pregnancy test a few weeks later! They were even more excited to discover that the surrogate was carrying twins! While not common, it isn’t unheard of for an embryo to split to create identical twins.
But no one told the surrogate or the intended parents a key piece of information: the twins did not share a gestational sack, as identical twins would, but instead each had their own gestational sack. That was proof that they developed from different embryos.
Not-So-Identical Twins. While the intended parents are Chinese, the surrogate is Caucasian, and her spouse is African American. So after the birth, it was clear that the babies did not look alike. The intended parents then had genetic testing done. While one baby was, indeed, the genetic child of the intended parents, the other was that of the surrogate and her spouse. Whoa!
How Does That Even Happen?! I spoke to fertility specialist Dr. Dana Ambler about the chance of this happening. She noted that terms like “superfetation” exist because these things do happen, and that she had knowledge of a similar situation occurring. But she suspects that due to fears of liability, “these cases are often kept hush-hush.” Dr. Ambler noted that while clinic protocols differ for an embryo transfer — “some work off a surrogate’s natural cycle, others use medication to suppress her own cycle — any clinic would have warned the surrogate as to the requirement that she refrain from sexual activity.” After all — spoiler alert — we all learned that lesson from Tina Fey and Amy Poeler in Baby Mama. When asked directly whether she thought this surrogate had failed to follow her doctor’s orders, Dr. Ambler noted that she thought that was exactly what happened.
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Who Is The Legal Parent? According to the surrogate, the surrogacy matching agency and the intended parents both were exploring options to put the child up for adoption to third-party parents against her wishes. What?! That’s crazy. Sure, the intended parents would have received a court order during the pregnancy naming them as the legal parents of the children. But that court order would have been based on false facts (i.e., the understanding that both children were those of the intended parents and not genetically related to the surrogate).
In a legal dispute on these facts, I see no other reasonable ruling than to find the surrogate as the legal parent of her own genetic child. Even if the surrogate had blatantly disregarded doctor’s orders to abstain from sex, that baby is hers.
Does The Surrogate Owe Money? The surrogate noted in interviews that the agency was demanding money from her to pay for expenses they incurred caring for the child, as well as other expenses. To be fair, if the child had been conceived and born the old-fashioned way, the mom would likely be paying bills related to care (like hospital and medical bills). But it seems highly problematic in this scenario to be charged for time she should have been able to care for her own child.
It is a standard provision in a gestational carrier agreement that if the child is found to be genetically related to the surrogate, she is in breach of the contract. Presumably, it means that she was not following doctor’s orders, and was having sexual intercourse while on embryo transfer related-fertility drugs. I am not saying that is what happened here (although that seems likely), but if she is at fault for this mess, then maybe the agency and the intended parents shouldn’t be the one financially paying for her breach of contract. Be careful what you sign!
Twin Compensation Unfairly Earned. The surrogate reports that the contract also provided compensation of $30,000 for carrying a single child, and an additional $5,000 for carrying a second child. I am sure the intended parents were upset to have paid an extra $5,000, only to find out they were paying for the surrogate to carry her own child.
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Dr. Ambler notes that the key to avoiding these situations in the future is education — being sure everyone understands the risks involved, and the importance of following the doctor’s recommendations. Hopefully, these cases are rare enough that we don’t need to start adding a superfetation clause to all gestational carrier contracts.
On the other hand, with the publicity this case has been getting, I can see fertility doctors making their abstinence restrictions for gestational carriers significantly more conservative. So get ready for some cold showers, surrogates/surrogate spouses.
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 babies@abovethelaw.com.
