I Want To Put A Baby In You: More History Made – Half-Sibling Triplets

Last month, South African couple Christo and Theo Menelaou made history. They were the first gay couple in South Africa to have triplets genetically related to both of them. The triplets were conceived by each dad-to-be fertilizing an egg and then transferring the two eggs together to a surrogate. One embryo split, resulting in the triplets – identical twin girls Zoe and Kate and their fraternal triplet/half-brother Joshua.

Strange Connection to Oscar Pistorious: Christo and Theo Menelaou were neighbors of the famed paraplegic Olympian runner, Oscar Pistorious. Pistorious is the disgraced medalist who was convicted of murdering his girlfriend, Reeva Steenkamp. The Menelaous happened to meet their surrogate-to-be during a neighborhood meeting regarding the Pistorious murder trial. In a further twist, the initial judge assigned to the Menalous’ case—Thokozile Masipa—was the same judge who presided over the Pistorious trial (although the Menalous were later reassigned to a different judge).

South African Surrogacy Law. The Menelaous were fortunate to find a very generous individual to serve as their surrogate. In a number of countries, including most states in the United States, a woman can be incentivized to act a surrogate through compensation (often in the $25,000 to $35,000 range for a first time gestational carrier). Not so in South Africa.

South Africa outlaws paid surrogacy. In other words, a surrogate may not legally accept any money from intended parents. Small exceptions are made for nominal amounts necessary to cover a surrogate’s direct medical expenses. In the United States, some states that allow surrogacy nevertheless prohibit compensated surrogacy on the same terms. These states include Washington, Virginia, and New York. Obviously, it isn’t easy to find a surrogate willing to carry a baby for free. (Yes, I know Phoebe Buffay did it on Friends for her brother.)

Not First. Although the Menelaous have the honor of making history in South Africa, they missed the world record by less than two months. A similar half-sibling triplet combo was reportedly delivered in Illinois on June 28, 2016.

In that case, Justin Ruehs and his husband Adam Smeets had also transferred two embryos to a surrogate, each formed with DNA from one of the fathers. The couple reported that they had been down a long road to get to this point. “This was our third surrogate and fifth IVF transfer to get to our delivery, including a miscarriage on the previous attempt.” The couple was overjoyed when the triplets were born healthy at almost 35 weeks.

Multiples Madness. Before the delivery of Christo and Theo’s triplets, their doctor advised them to ask the surrogate to terminate the twin pregnancy of the triplets. The doctor counseled that aborting two of the three babies would reduce the chances of all of the fetuses perishing, and increase the chance of the birth of one healthy baby. Obviously, Christo and Theo ignored this advice, seeking out a different doctor who worked with them. Fortunately, after going against medical advice, the babies beat the odds and all survived after being born prematurely. At birth, they each weighed only about two pounds.

Christo and Theo are not alone in our world of multiples. Thanks mainly due to fertility treatments, twins and triplets increased dramatically in the 1990s and 2000s. Even today, it is not uncommon. More recently, however, transferring only one embryo has become the accepted best practice for doctors.

The Move Away From Adoption. The Menelaous described in an interview how they had wanted to have children but did not think it would be possible. When they pursued the adoption route, they had been advised by an adoption agency that it would be unlikely for an expecting mother in South Africa to choose them over a heterosexual couple. After that conversation, they opted to try surrogacy.

Not Being Chosen. Not being chosen is a common problem that leads couples and individuals to favor surrogacy over adoption. In South Africa, a hopeful parent must still find a surrogate willing to carry a baby for free. By contrast, countries like the United States make finding a surrogate more a matter of financial resources.

Legal Preference. Although surrogacy laws continue to have their gray areas and ugly cases, in many jurisdictions it’s a legally cleaner scenario than adoption. In adoptive situations, a birth mother often has some period of time to change her mind even after she has relinquished rights to her child. This can be a devastating experience for the adopting parents.

While surrogate pregnancies suffer from the usual pregnancy risks suck as miscarriage, in several states (such as Colorado, California, and Illinois) the intended parents can secure a court order spelling out the intended parents’ legal rights to their child even before the child’s birth. And the surrogate mother cannot, for the most part, change her mind.

With the increasing use of IVF and surrogacy by diverse family structures, we can expect history to continue to be made on a near-daily basis. We did just see the first father-father birth certificate issued in Montana. By next year we may see triplet half-siblings becoming commonplace.

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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].