By Jake Rossen
By Jesse Marx
By Michelle LeBow
By Alleen Brown
By Maggie LaMaack
By CP Staff
By Jesse Marx
When Stacey and Gary were told the surrogate's water broke, they grabbed the bag they had packed and sped off to the hospital. On January 30, 2006, at 5:47 a.m., James Herman Suess was born.
"I got to deliver him," remembers Suess. "I got to cut his cord. It was amazing. Afterward, [the surrogate] was like, 'Okay, I'm going back to sleep.' And we had this baby. He was all slimy, gross, and yucky, but of course he was beautiful. I was the first person to touch him when he came into the world.
"Biologically, he's ours," she hastens to add. "I just didn't have the bucket to carry him."
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FROM 1970 TO 2001, there were an estimated 14,000 to 16,000 surrogate births in the United States. Of those, a mere 88 were disputed—in most cases, not because the surrogate was withholding the baby, but because the parents-to-be were having second thoughts: They were divorced by the time the baby came, or the birth was premature and insurance wouldn't pay, or maybe one baby turned into three, four, or five due to multiple embryos taking, or genetic testing showed the fetus had a rare disorder and the parents didn't want to assume the responsibility of caring for a special-needs child.
As of 2001, there had been only 23 documented cases of a surrogate not wanting to give up her parental rights. For some, it was an attempt by the surrogate to negotiate better contract terms; for others it was an undeniable bond with the child once it was born.
One of the best known cases is "Baby M." In 1985, Mary Beth Whitehead gave birth to a girl after she agreed to carry a child for an infertile couple using her own eggs. But the 29-year-old refused to part with her infant, resulting in a highly publicized two-year court battle. Eventually, Whitehead was denied custody, but granted visitation rights.
Traditional surrogacy, like in the Whitehead case, can be among the most complex cases legally, says local surrogacy lawyer Steve Snyder. Traditional surrogates use their own eggs combined with the intended father's sperm to conceive a child, usually through artificial insemination. Most medical clinics and agencies will not work with traditional surrogates for liability reasons, meaning that at times the courts and medical professionals involved with the birth are unaware of the surrogacy situation.
Gestational surrogacy, on the other hand, is when the intended parents use their gametes or a donor's to create an embryo in the lab; the fertilized egg is then placed in the surrogate's womb. Unlike a traditional surrogate, a gestational surrogate has no genetic link to the child.
Every surrogacy arrangement has the potential for conflict, adds Snyder, who has worked for years to establish surrogacy law in Minnesota to regulate the practice. There are about 100 surrogacy agreements a year in the state, yet there are no legal protections guiding the process.
One of the reasons legislation is so important is that it would address motivation, says Deborah Simmons, a counselor for surrogates and intended parents in Minnetonka. On average, surrogates make between $15,000 and $25,000 per birth, and most aren't doing it for money. But if they are, that needs to be figured out beforehand, because it can be a huge red flag.
Most surrogacy agreements are steered by contracts. But when there's a dispute, the decision is mostly left to the whim of judges who have precious little case law to guide them. Currently, Minnesota law assumes the woman who gives birth to the child is the mother, regardless of genetic linkage, and intended parents go through a stepparent adoption process to gain custody.
"That's just wrong that it's up to a judge to decide who the parents are," says former surrogate Tracey Sajady, a Mound resident who says one of the proudest moments of her life was when she was a gestational carrier for her sister-in-law.
Recently, the state Legislature voted to approve the very beginnings of a legal framework for surrogacy contracts. Considered by the American Bar Association as a "best practice" surrogacy law, the legislation would have forced gestational carriers and intended parents to go through a more formal and binding contract process, requiring them to think through and agree on what would happen in almost every possible outcome, including if one or more of the parties had a change of heart. The legislation also would have clearer guidelines for establishing parentage and mandated psychological counseling for surrogates.
But Gov. Tim Pawlenty vetoed the legislation last month. Due to the controversies surrounding embryo-making and surrogate compensation, the practice isn't popular among conservative Christians and the family values crowd. Surrogates are marketing their own bodies, critics argue, engaging in the illegal practice of baby selling, and ignoring the rights of the unborn child. Surrogacy also makes it easier for gay couples to have children.
"The state needs to ask itself if that is what it wants to encourage," says Tom Prichard, president of the Minnesota Family Council, who heavily lobbied legislators against any form of legalizing surrogacy. "The fundamental thing is that children need a mother and father and we need to be promoting that whenever we can."