Family Law

Surrogacy’s Craziest Case Just Birthed A Lawsuit

There was a great deal of confusion after the birth, and things didn't go as smoothly as anyone would have liked.

By  
on

Remember that super bizarre surrogacy case I wrote about last year? A white surrogate in California, married to an African-American man, agreed to be a surrogate for a Chinese couple. Yes, I know, describing someone by their race is something that only that one out-of-touch relative does. But in this unusual fact pattern, race becomes relevant.

The fertility doctor in this case transferred one of the Chinese couple’s embryos to the surrogate’s uterus. Everyone was happy to learn that the procedure worked, and that the surrogate was pregnant. Even better, everyone was happily surprised to learn that the surrogate was carrying twins! That wasn’t impossible, even though only one embryo had been implanted. Because hey, embryos split, and identical twins happen. Everything was great. Until the babies were born. The babies did not exactly look like identical twins. Instead, one looked Chinese, as would be expected based on the ancestry of the intended parents, but the other appeared to be of mixed race (aka half white, half black). Ohhh no.

New Vocab! Superfetation.

When I wrote my article last year, we all got to learn a new word together – “superfetation.” This is apparently when a pregnant woman gets pregnant (again) while already pregnant. In this case, somewhere around the time of the embryo transfer of the Chinese couple’s embryo, the surrogate also got pregnant with her own child, and carried both pregnancies simultaneously. That’s pretty surprising, to say the least. The complaint notes that she was advised to use condoms around the time of the embryo transfer, and the complaint also says they followed all medical advice. So add the failure of a condom to the improbability of the situation.

The Nightmare That Followed.

Unfortunately, there was a great deal of confusion after the birth, and things didn’t go as smoothly as anyone would have liked. In fact, things went so poorly, that on July 20, 2018, the surrogate, Jessica Allen, her husband Wardell Jasper, and the baby in the center of the chaos, Malachi Jasper, sued the surrogacy agency and a related law firm. From the complaint, filed in Riverside County, we now have the surrogate’s side of the story. And it’s a pretty terrible story.

After the babies were born, despite having a contractual provision that Allen would be allowed to see the babies and spend an hour with them, Allen says she was never allowed to see them. The Chinese mother, however, did momentarily show her a picture. When Allen commented that the babies did not look very much alike, and mentioned this to her agency contact, Tracy Armato, her concerns were merely brushed off. Armato told her that Armato herself had given birth to twins that didn’t look similar at first, but later looked more alike. Oh, ok. Case closed then, right?

Sponsored

Not in the least. Armato is in fact painted as the chief villain in this story, with the complaint noting that she previously worked for Conceptional Options, an agency caught in an actual “baby-selling” scandal back in 2011, and with prior convictions for fraud, forgery, and corruption of records. alleging that Armato “worked at one time as the ‘Program Director and Surrogate Programs Admissions Coordinator’ for Conceptual Options of San Diego, founded and led by a woman who was convicted of and pled guilty to federal charges of operating a ‘baby-selling ring’ in 2011.”

[UPDATE (8/31/2018): The preceding paragraph has been revised to quote directly from the (unproven) allegations of the complaint, instead of attempting to summarize them. In addition, as counsel to Conceptual Options pointed out to us after this story was published, the woman referred to in the complaint as involved in a “baby-selling ring,” Theresa Erickson, “pleaded guilty to crimes she committed while acting in her capacity as an attorney, through her law office Erickson Law.  Conceptual Options was not aware of Erickson’s acts, did not participate in any way, and was never implicated by authorities in the matter.”]

The babies were born December 12, 2016. But the complaint describes frustrating delays in getting DNA information, and finally delivering Allen’s genetically-related baby to her. On January 10, 2017, Allen received a text from the Chinese parents showing DNA results that one of the babies was not related to them. Allen went in for DNA testing on January 13, but was told by Armato that Armato wasn’t available that day to bring the baby in for DNA testing, so they had to wait until the following week. Allen was told results would be in by January 19, but Armato didn’t deliver the news that the DNA test confirmed Allen as the mother until January 25.

It gets worse. Upon confirmation that Allen was the mother of the child, you would think the agency would have promptly arranged for the baby’s reunification with his mother. Instead, per the complaint, the agency demanded money back from Allen, including $9,200 Armato said was spent on the care of the baby. Even worse, Armato informed Allen that if she and Jasper did not pay the money (which they did not have, because like any reasonable person, they had spent it), the baby would be placed up for adoption. Yikes! The complaint also says that the agency also informed Allen that she would need to pay the Chinese couple between $18,000 and $22,000, and would need to issue an apology to them.

Finally, on February 4, 2017, the agency called to tell Allen that she would be reunited with her baby later that day, and that Armato had been instructed to deliver him. Of course, the complaint says that that message was followed up with the news that Armato’s son had a baseball game that day, and that she wouldn’t be able to bring the baby to Allen. So I guess this was more like a casual errand for Armato, like going to the post office or picking up that cooler you left at a friend’s house? Finally, on February 5, Allen and her son were united. That was almost two months after his birth! That seems incredibly long, and the demands by the agency and its representative seriously problematic. Of course, we don’t yet know the agency’s side of the story. And Allen was paid thousands of dollars extra by the Chinese couple to carry the second child, who turned out to be Allen’s own child.

Sponsored

However, the complaint may go too far in attempting to establish the standard of care for a surrogacy agency. The complaint alleges that the agency should have known about the possibility of superfetation, since that knowledge “is required of those who practice in the commercial surrogacy field.” Actually, not so much. The complaint also states that “Allen and Wardell were never advised and/or warned of the possibility of superfetation by defendants.” But, that’s not surprising at all. Superfetation is so rare that an average agency probably had never heard of it or even knew it to be a biological possibility… until this case. Also, it could be that if anyone were to advise her on it, it would be a medical professional, not the surrogacy matching agency!

This isn’t to say I am not super sympathetic to Allen and her family. If the facts of the complaint are accurate, the delay was crazy, and the demands placed on Allen and her family were abusive. On the other hand, of course, the agency was not prepared for this, and it is an unheard of outlier. Does the agency’s poor response rise to the level of child abduction, extortion, child abuse and endangerment, conspiracy, battery, and intentional infliction of emotional distress, among others, as claimed? We will wait with interest and see. In the meantime, I hope Armato’s son at least won that baseball game!

Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

Topics

, ,