Making Babies: 21st Century Families
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Fri April 13, 2012

Surrogacy Experts Help Navigate Murky Legal Waters

First in a four-part report

On a sunny weekday morning, Diane Hinson pauses at the door of a generic office park in Northern Virginia. It's a routine work appointment for her, but a potentially life-changing event for her clients.

"I'm here today for the transfer of embryos," she explains.

Hinson is one of a growing number of lawyers making a living by coordinating surrogacies — a pregnancy where a woman bears a child for someone else who can't conceive or carry a pregnancy to term. According to the Society for Assisted Reproductive Technology, more than 1,400 U.S. babies were born this way in 2010, and many more such births are thought to go unreported. This small, but fast-growing field is fraught with risk, and often intense coordination is the only way to avoid a legal nightmare.

Inside the Virginia Center for Reproductive Medicine, Hinson greets Joy, a confident and upbeat surrogate-to-be who has flown in from Florida for this appointment.

"I knew how much of a joy it was when I had my baby," Joy says. "I thought I'd love to do this for someone."

Hinson has matched Joy with Michael, a single man from Germany who wants to be a father. Surrogacy is banned in Germany, and both will only let us use their first names.

The two embryos ready for transfer were created using Michael's sperm and the eggs of an anonymous donor in Washington, D.C. Confused? The point is that — like almost all surrogacies now — Joy will have no genetic connection to any baby she carries.

Joy signs a consent form agreeing to carry twins if both embryos implant. With a hug and a quick "Good luck!" she heads back to an operating room for the procedure.

A Legal Patchwork

When surrogacy works, it's like a miracle for people who never thought they'd be able to have a child. But when it goes wrong, it goes terribly wrong. And though that doesn't happen often, those are the cases you're most likely to hear about — surrogates changing their mind and deciding to keep a child, followed by protracted custody disputes.

Surrogacy is largely unregulated and, thanks to the Internet, it's become a do-it-yourself affair with potentially disastrous results. A decade ago, Hinson started Creative Family Connections in Maryland with the aim of creating order in a reproductive Wild West.

"We actually made this map of the United States," Hinson says as she pulls it up on her laptop. It's a colorful display of varied and competing state laws on surrogacy. There are "proceed at your own risk" states, where surrogacy is prohibited, but goes on anyway; there are "green light" states that permit it and "yellow light" states that won't enforce surrogacy contracts; and then there are the states that allow it with certain restrictions, like you have to be in a traditional marriage.

"And then we've got a huge number of states which we call the 'vacuum' states," Hinson says. That means there is no statute and there are no published court cases. There's also one "red light" state where surrogacy is criminal — Washington, D.C., just down the road from Hinson's office. She says she once spent a panicked day trying to keep a hospitalized surrogate in Maryland from being transferred to D.C.

"They're like, 'Well, what would happen if this baby was born in D.C.?' because she was having contractions," Hinson says. "I'm like, 'I don't know, and I don't want to find out.' "

Visiting A Surrogate

According to Creative Family Connections, prospective parents can pay well over $100,000 in legal and medical fees. With all that at stake, Hinson must first figure out where clients can hire a surrogate; then she sets out to find a woman for the job. She and her colleagues place personalized ads and carry out an intense vetting process that includes a psychological evaluation and home visit.

At one such visit, Crystal Andrews welcomes Creative Family Connections partner Linda ReVeal and a case manager into her tidy townhouse in Bel Air, Md. "I feel like I need to hug you, I've talked to you so many times," Andrews says. Andrews wants to be a surrogate, and her husband, John Andrews, has taken off work to be here.

The couple meet crucial criteria for surrogacy. They already have children, so Crystal presumably understands the emotions involved in bearing a child; their home — or "in utero environment" as ReVeal calls it — is clean and happy; and they are not on government aid. While surrogates get paid about $20,000 plus expenses, the idea is to rule out anyone who's doing it only for the money.

John assures them he is supportive, another must. "I see it as a chance for her to provide for somebody else who can't have [a baby]," he says.

ReVeal presses: "You don't think it'll be weird or uncomfortable to have your wife be pregnant with a child that isn't yours?" she asks.

No, he says, and family and friends are also onboard. Crystal tells them she enjoys being pregnant.

"It's like I have a purpose," she says. "It's like I'm doing something important."

A 55-page contract will make sure surrogate and intended parents see eye to eye, spelling out everything from when they'd agree to terminate a pregnancy to how the surrogate will try to eat a well-balanced diet. ReVeal also asks what kind of people the Andrewses would like to help — a married couple, a same-sex couple or a single parent. Crystal says it's all good.

"I think people who are uptight might not jive with us very well," she says, "just because we're just very relaxed."

Hinson says she does her best to make a good match between surrogate and intended parents. But in the end, she says, this relationship depends on trust.

"I always liken it to parents who have a nanny," she says. "If you think you need a nanny-cam, you're getting the wrong person. You have to ultimately trust that this is the person who's going to take care of your baby."

The Surrogacy Bond

Back at the Virginia fertility clinic, the embryo transfer went well for Joy, the surrogate from Florida, and the doctor comes out to show off the ultrasound.

It's exciting, but if Joy becomes pregnant, there's always the risk that she'll bond with the baby she carries. Instead, Hinson encourages surrogates to bond with the intended parents. Joy has already spent time with father-to-be Michael and they talk on Skype. She also knows how she'll explain all of this to her own toddler son.

"I'm going to take pictures for Michael to see my belly," she says. "When my son gets of age, I'll tell him Mommy helped create a baby for someone else. I'm hoping I can say, 'See, this is Uncle Michael's baby.' "

If all goes well, today's black-and-white ultrasound will be the first photo for Michael's — and Joy's — baby book.

This story was produced for broadcast by Marisa Peñaloza.

Copyright 2012 National Public Radio. To see more, visit http://www.npr.org/.

Transcript

RENEE MONTAGNE, HOST:

About 1,400 babies were born in 2010 to U.S. surrogates - a woman paid to bear a child for someone else. Many more such births are thought to go unreported in this small, but fast-growing field. Coordinating a surrogacy means navigating a legal and emotional minefield. As part of our series Making Babies, NPR's Jennifer Ludden explains the process and what's needed to keep surrogacy from becoming a legal nightmare.

JENNIFER LUDDEN, BYLINE: A routine work appointment for Diane Hinson can be a life-changing event for her clients. Hinson pauses at the door of a generic office park in northern Virginia.

DIANE HINSON: I'm here today for the transfer of embryos.

LUDDEN: Hinson doesn't really have to be here for that, but clients count on her.

HINSON: Some of them have decided I've become the lucky charm, the good-luck charm. So I'm more than happy to be that part.

LUDDEN: Should we go in?

HINSON: OK. Let's go.

LUDDEN: Just inside, the Virginia Center for Reproductive Medicine.

HINSON: Hi, Joy. Good to see you.

LUDDEN: Joy has agreed to be a surrogate. Confident and upbeat, she's flown up from Florida for this appointment. Hinson has matched her with Michael, a single man from Germany who wants to be a dad. Surrogacy is banned in Germany, and both will let us use only their first names. The embryos, meanwhile, were created using Michael's sperm and the eggs of an anonymous donor in Washington, D.C. Confused? The point is that, like almost all surrogacies now, Joy will have no genetic connection to any baby she carries.

JOY: I heard two eggs are doing great.

DR. FADY SHARARA: Two embryos. They look fabulous. And they're hatching, both of them.

LUDDEN: Dr. Fady Sharara has Joy sign a consent form, then she heads back to an operating room for the procedure.

JOY: OK. Thank you.

LUDDEN: When surrogacy works, it's like a miracle for people who never thought they'd be able to have a child. But when it goes wrong, it goes terribly wrong. And though that doesn't happen often, those are the cases you're most likely to hear about.

UNIDENTIFIED MAN: Eckhart changed her mind and decided to keep the child.

UNIDENTIFIED WOMAN: A trial judge says the egg donor had no parental rights over the girl, but...

UNIDENTIFIED MAN #2: The woman gave birth to twins only to take them away a couple months later.

LUDDEN: Surrogacy is largely unregulated, and the Internet has allowed this high-tech baby-making to become a do-it-yourself affair with potentially disastrous results. A decade ago, Diane Hinson started Creative Family Connections in Maryland, aiming to create order in a reproductive Wild West.

HINSON: We actually made this map of the United States.

LUDDEN: She pulls it up on her laptop, a colorful display of varied and competing state laws on surrogacy. There's the proceed-at-your-own-risk states, where it's prohibited, but goes on, anyway. Other states are a green light, yellow light or OK, but only if you're a married man and woman.

HINSON: And then we've got a huge number of states, which we call the vacuum states.

LUDDEN: No statute, no published court cases. There's also a red light, where surrogacy is criminal, in Washington, D.C., just down the road from Hinson's office. She once spent a panicked day trying to keep a hospitalized surrogate in Maryland from being transferred to D.C.

HINSON: They were like, well, what would happen if this baby was born in D.C.? Because she was having contractions. I'm, like, I don't know. I don't want to find out.

LUDDEN: In addition to the legal risks of surrogacy, there's the cost. Prospective parents can pay well over $100,000 in legal and medical fees. With all this at stake, Hinson must first figure out where clients can hire a surrogate. Then she sets out to find a woman for the job. She and her colleagues place personalized ads and carry out an intense vetting process that includes a psychological evaluation and home visits.

HINSON: Hi, how are you?

CRYSTAL ANDREWS: I feel like I need to hug you. I've talked to you so many times.

LUDDEN: Crystal Andrews wants to be a surrogate. She welcomes Hinson's partner, Linda ReVeal, and a case manager into a tiny townhouse in Bel Air, Maryland.

JOHN ANDREWS: Hello. How are you?

LINDA REVEAL: Hi, I'm doing good, John. Nice to meet you.

ANDREWS: Hi, Linda. Good to meet you.

LUDDEN: Crystal's husband John has taken off work to be here. The couple meets a crucial criteria for surrogates: They already have children, so Crystal presumably understands the emotions involved in bearing a child.

REVEAL: So, the purpose of this interview, we like to come to the surrogates' homes and just sort of get a sense of the environment and...

LUDDEN: Linda ReVeal calls this the in-utero environment, and it looks good, clean and happy. Another must: The Andrews are not on government aid. While surrogates get paid about $20,000 plus expenses, the idea is to rule out anyone who's doing it only for the money. And ReVeal wants to make sure John is supportive.

ANDREWS: I see it as a chance for her to provide for somebody else who can't have it.

REVEAL: You don't think it'll be weird or uncomfortable to have your wife be pregnant with a child that isn't yours?

LUDDEN: John assures them no, and says family and friends are all onboard.

ANDREWS: She's great pregnant, so I have no issues with her being pregnant at all.

REVEAL: We love to hear that.

(SOUNDBITE OF LAUGHTER)

ANDREWS: I actually feel very, very good when I'm pregnant. It's like I have a purpose. I don't know. It's like I'm doing something important.

LUDDEN: A 55-page contract will make sure surrogate and intended parents see eye to eye, spelling out everything from when they'd agree to terminate a pregnancy to how the surrogate will try to eat a well-balanced diet. ReVeal also asks what kind of people would the Andrews like to help: married couple, same-sex, single parent? Crystal says it's all good.

ANDREWS: I think people who are uptight might not jibe with us very well, just because we're just very relaxed.

LUDDEN: Diane Hinson does her best to make a good match between surrogate and intended parents. But in the end, she says, this relationship depends on trust.

HINSON: I always liken it to parents who have a nanny. If you think you need a nanny cam, you're getting the wrong person. You just - you have to ultimately trust that this is the person who's going to take care of your baby.

SHARARA: OK. Great. So, everything went fantastic.

LUDDEN: Back at the Virginia clinic, the embryo transfer went well for Joy, the surrogate we met earlier. Dr. Sharara shows off the ultrasound.

SHARARA: So, this is where the embryos are. You see this white dot?

LUDDEN: It's exciting, but if Joy becomes pregnant, there's always the risk that she'll bond with the baby she carries. Instead, Hinson encourages surrogates to bond with the intended parents. Joy has already spent time with dad-to-be Michael. They talk on Skype, and she knows how she'll explain all this to her own toddler son.

JOY: I'm going to take pictures for Michael to see my belly and stuff. So, when my son gets of age, I'll tell him, like, mommy helped, you know, create a, you know, a baby for someone else. I'll tell him that, if they see this, this is, you know, this is Uncle Michael's baby.

LUDDEN: If all goes well, today's black-and-white ultrasound will be the first photo for Michael's and Joy's baby book. Jennifer Ludden, NPR News.

(SOUNDBITE OF MUSIC)

MONTAGNE: Later today on ALL THINGS CONSIDERED, Jennifer tells the story of one couple and the woman who carried their twins. Transcript provided by NPR, Copyright National Public Radio.