Nestled away in Minnesota farm country, Mazeppa resident Stacey Suess sits on her back porch in a red plaid blouse and denim capris and recalls the heartbreak of infertility. After giving birth to her first son, Devin, doctors informed her that there were tumors in her uterus; her womb had to be removed.
The then-26-year-old had a house and two jobs and was trying to break free from an abusive marriage. "I really didn't have time to think about the fact that I wasn't going to have any more children," she says. "I had all this going on and suddenly, I had this baby to worry about."
Eight years later, much had changed in Suess's life. She had gotten divorced and taken a job in online research at the Mayo Clinic. She had fallen in love with a man named Gary, an agriculture specialist in Goodhue County, and made plans to remarry; she couldn't wait to start a family with him.
"Gary always considered Devin his son, but I think if it is at all possible, it's important to have your own little man running around, or your own little girl," Suess explains.
She turned to doctors for help, but there was nothing they could do. "It was very emotional," she says. "I couldn't be the wife I wanted to be. I couldn't give him a child." The only way for Stacey and Gary to have a child together was to find a surrogate to host their embryo.
At first, surrogacy was a strange solution for Suess, something the small-town gal had thought very little about before. She spent hours trying to convince her 90-year-old grandmother that surrogacy didn't mean her husband was going to have sex with someone else. She even lost friends over her decision. "They said we were playing God," she remembers. "They said that it was wrong."
For Suess, a woman of faith, none of that mattered. "I look at it this way," she says, rocking back in her chair as the morning sun pours down. "The only judge that we should have in this world is God, and if he didn't feel this was right, or that it should happen, he wouldn't have given us the knowledge and medical ability to do this."
To find their surrogate, Stacey and Gary turned to the internet. They found websites where they could email potential carriers and view their profiles. Within a few months, Suess found the woman she wanted to carry her baby. "She was very nice, in her mid-20s. She was married and had a child and loved being pregnant and just thought this was something she could do for others," Suess remembers.
A contract was drawn up. Everyone, even eight-year-old Devin, couldn't wait for the baby.
Suess and the surrogate immediately started the grueling medical process required to make the pregnancy work. Both women took hormones to synchronize their cycles. Seuss went through in vitro fertilization. "Every single morning I'd give myself shots—two, sometimes three times a day. It was hell.... It's hormones. It messes with you."
When the timing was right, Stacey's eggs were matched with Gary's sperm in a lab, and two pre-embryos were implanted in the surrogate's womb. "We thought we had done it," Suess remembers. "We thought this was it, all our hard work was paying off. We were going to have a baby."
Weeks later, Suess was devastated to learn that the pre-embryos were lost. The surrogate had not followed medical protocol. She admitted she had been too busy with her own kids.
Six thousand dollars and nine months later, Suess was ready to give up. She called her lawyer crying.
"We can't afford to do this. Emotionally this is very hard and financially it's quite a step," she told him.
He convinced her to try again. He told her to find another surrogate, this time using an agency.
"It will work," he said. "You and your husband will have a child of your own."
So Suess gave it one last try. After going through several portfolios of surrogates at the International Assisted Reproductive Center, a Twin Cities-based surrogacy agency, she and Gary found a new carrier. For the second time, they had a contract drawn up, and Suess headed to the clinic for in vitro fertilization. She prayed this would be it.
Months later, when the surrogate called to say she was pregnant, Suess was reluctant to believe her. It had been traumatizing to lose the last embryos; psychologically, she wasn't ready to deal with that again. If the surrogate was pregnant, she wanted to hear it from a clinic.
A week later, the phone rang. It was a nurse calling to tell Suess that she was going to bring a baby into this world. The embryo had taken; Suess was going to have a child. As soon as she hung up, she called Gary at work, "Congratulations, Daddy," she wept into the receiver.
For the next nine months, Suess experienced pregnancy side by side with her surrogate. The two became close friends. Suess went to the hospital for the ultrasound that revealed they were having a boy. She cooed over her surrogate's swelling belly, watching nervously every time the surrogate felt an uncomfortable kick. Every pregnancy nuisance was a victory for Suess and her husband. "She got morning sickness, like puking in the shower, and we were like, 'Yes!' It was kind of funny now that we celebrated at that; she couldn't eat; she couldn't sleep."
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."
• • • • •
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."
Still, state Rep. Kathy Tinglestead (R-Andover) says there are very strong arguments in favor of having the Legislature weigh in on the issue.
"We just keep reminding people that it's already happening," she says. "This will just put some parameters around it."
• • • • •
AT 36, SARAH BARISH FOUND herself strapped for cash. She was a single mother with two children. Her eldest, a teenager, needed more parental supervision, but Barish was spending nearly 60 hours at work a week to pay for her kids' private schooling. She didn't know what to do; she could quit her job and watch her family's livelihood dwindle, or she could find a way to make money from home.
Barish had known women who had become surrogates, and had enjoyed being pregnant before, so why not help someone else out? She posted a profile on a surrogacy website. After talking with several interested parties, Barish decided to help a gay couple have a child.
"The first day I met them we signed the contract," says Barish, whose name has been changed to protect her privacy. "I really trusted them. They seemed so wonderful."
Barish didn't pay that much attention to the particulars of the agreement. She didn't even ask the men for a copy. All she knew was that she was broke. The men promised her $20,000 in addition to paying any medical costs not covered by insurance. They promised her that after the birth she would still play a role in the child's life.
"I would have never agreed to be involved in a surrogacy if I was expected to walk away completely," Barish says. "I picked them specifically because we were going to have ongoing contact."
Using artificial insemination, Barish got pregnant. Throughout the pregnancy, the men visited her several times. They got to know her family, even attending her children's school functions. They told the kids that they were going to make great stepsiblings to the baby. They painted it like they would all be one big, happy family.
When the big day came, Barish drove herself to the hospital. The medical staff was unaware of the surrogacy agreement. One of the gay men posed as her boyfriend, the other as a friend. They all watched the doctor put the crying newborn in its mother's arms. "I was bawling," Barish says. "She was beautiful. She still is beautiful. I nursed her in the hospital."
Three days later the men drove Barish home. She sobbed in the backseat as she told them she was having second thoughts. "They said I could come see her. They said I could come stay the night later that week," Barish says. "I called them later that night and they never answered their phone. I called the next day and they never answered their phone. I called them the next day and the next and when they answered, they were very cold to me."
Barish saw the child twice before the couple told her they would be leaving the state for an extended vacation. "They could tell I was getting attached," she says.
The baby was just weeks old—not nearly old enough to travel or to leave its mother, Barish thought.
Afraid they weren't going to return, Barish had the father's name removed from the birth certificate and filed kidnapping charges. Much to her dismay, the charges were dismissed. "If there was no piece of paper here, no contract, the police would have filed an Amber Alert," Barish complains. "What's the difference? I'm still her biological mother and I never terminated my rights."
Weeks later the couple called. They were back in town and wanted to meet. Barish could see the baby as long as she agreed to sign a form relinquishing her parental rights, per the stipulations set forth in the contract.
Barish told them she was coming over. What she didn't tell them was that she wouldn't be signing any forms, that she had already started decorating a nursery at her home.
For an hour, Barish and her family visited with the couple, fawning over the baby. When it was time to go, she announced she was taking the baby with her.
"They started screaming and stood in front of the car so we couldn't leave," Barish remembers.
Once police arrived, neither side could produce the birth certificate. Barish was given a choice: Either the infant could go to a foster home or the baby would remain with the gay couple until the courts sorted everything out. "I didn't want her to go to a foster home. So, I left," Barish says.
For the last 12 months, the child's fate has been in question. Both sides are fighting for full custody and a hearing is scheduled for this summer in Hennepin County.
"I would have agreed to joint custody," says Barish angrily. "I didn't ever want to shut them out from her life. It was [because of] their desire to have her that she's here. But now, after all this, I don't think they're responsible enough to encourage her emotional health.... They are thinking only of themselves and the possession of this child. No one is thinking about how she's going to feel in 15 years when she finds out that her mom really wanted to have a part of her life, but they wouldn't allow it."
Today, she wishes there had been some sort of legislation to guide her through the surrogacy process. If there had been laws, Barish believes, she would have never held the child in the hospital because the medical staff would have been well aware of what was going on. She would have understood the meaning of her contract and the visitation rights would have been spelled out on paper. There would be no ugly custody battle.
"Laws are supposed to protect us," she says. "But there were no laws to guide or protect me. My fate and the fate of my baby is now completely up to a judge."
Barish received $15,000 for bearing the child for the couple, but says she'd give it all back. She would sell everything she owns to hold her baby.
• • • • •
"STORIES LIKE HERS give surrogacy such a bad rap," says Charity Lovas, of North Branch, who has been a surrogate three times and hasn't ruled out doing it again. "That's why there needs to be legislation. It really can be such a wonderful thing. If you are adequately prepared and are doing it for the right reasons, it is the most miraculous thing to give someone else a child."
Lovas, 34, has been pregnant five times and just gave birth to her seventh child. She has been both a traditional and gestational surrogate and believes pregnancy is her calling.
"God gave me this gift to carry children, to have easy pregnancies. If God's theory is to spread the good, well, this is a way I know I can," she says, bubbling with excitement and hardly touching her salad from Burger King, all while keeping one eye on her three children running around the restaurant's play area.
Ten years ago while living in Indiana, Lovas saw a want ad for egg donation and surrogates. As she stared at the newspaper clipping, her mind drifted to her first pregnancy, seven years earlier. It had been the best nine months of her life. Though she hated waddling and being sick, it was worth it for the sensation of the fetus moving inside her belly. She loved the way being pregnant made her look and feel; she loved it when she glowed. And most importantly, she loved being a mom.
The couple seeking a child were from Belgium; the woman had been told at an early age that she was barren. Lovas met the intended parents twice, once when they came to the U.S. for the transfer of the pre-embryo, and again in the delivery room. Staring up from the hospital bed as the new mother cradled the infant, Lovas was ecstatic.
"Just seeing this woman, just looking at this baby and thinking about the fact that she was told she'd never have a baby, and this, me, I was her shot, her chance at being a mom. The look on her face when she held the child was just priceless."
Lovas got pregnant for herself one year later. Much to her delight, she had twins, a boy and a girl. With three kids of her own to care for, Lovas was pretty sure she was done with the surrogacy thing. That was until she got the itch two years later. She soon realized she wanted to be pregnant again, to help another couple create the family they desired.
Her husband was onboard, too. Though he was initially hesitant about surrogacy—afraid he and his wife would develop a bond to the child she was carrying—after the first birth, Tom Lovas saw everything through a new lens.
"It's not right for everyone, but in our case it has been the three best experiences and blessings of our lives," he says. "It's not a feeling of loss at all. It's the feeling that we had the ability, the heart, and dedication to do something special. It's a moment that just takes you away."
Although she knew it could be more trying emotionally, this time Charity agreed to be a traditional surrogate—meaning she'd provide the egg as well as the womb.
"It took a lot of thought, prayer, and soul searching, but I knew I could do it," Lovas says. "I just had to look at it honestly, not sugarcoat it. Yes, this would be my baby, but really, he or she was for them."
Lovas had another set of twins. She laughs when she thinks about the nurse handing the children over to the intended parents. She never asked to hold the babies; she never asked to remain a part of their lives.
"I think of them like special-ordered babies," Charity says. "They were babies specially made for them at that particular time."
This March, Lovas delivered another special-ordered baby for another infertile couple. "I love the feeling I know I'm going to have when I see them hold the child for the first time—that feeling that you have changed their lives forever."
For each family, Lovas makes a scrapbook documenting her pregnancies. The intended parents have become some of her best friends; they often send her photos of the kids she helped bring into the world. "It's not the children I want to see, it's the complete family that makes me so happy."
• • • • •
SITTING ON HER PORCH, Suess's face glows as keeps a close eye on her new son. Jimmy has hit the terrible twos, and though he can't say much yet, he has figured out how to get what he wants. He drops his bowl off the porch to signal that it's snack time, and punches the buttons on the cordless telephone when he wants attention.
The boy is quick to show off that he has learned how to turn on the outdoor water pump all by himself. Curiously, he doesn't understand that this means he's going to be splashed.
When he comes to his mother, pointing to his wet clothes, his face scrunched with fear and confusion, she laughs and helps him dry off. Within seconds, Jimmy has forgotten all about the water and runs to chase the family cat. A tractor roars by on a nearby dusty country road and Jimmy shakes with glee. He skips over to his mom, giggling and pointing in the direction of the sound. Suess takes him in her arms and hugs him for a minute. She kisses his blond head and whispers into his ear, "You're mommy's son, aren't you?"
Jimmy struggles to get free and runs off to play. "Really," his mother says, watching her son. "Who could ever say this is wrong?"