Painful implications if surrogacy goes awry

Unable to have a baby of her own, Amy Kehoe became her own general contractor to manufacture one. For Kehoe and her husband, Scott, the idea seemed like their best hope after years of infertility.

Working mostly over the Internet, Kehoe hand-picked the egg donor, a student at the University of Michigan. From the Web site of California Cryobank, she chose the anonymous sperm donor, an athletic man with a 4.0 high-school grade-point average.

On another Web site, surromomsonline.com, Kehoe found a gestational carrier who would deliver her baby.

Finally, she hired the fertility clinic, IVF Michigan, which put together her creation last December.

"We paid for the egg, the sperm, the in vitro fertilization," Kehoe said as she showed off baby pictures at her home near Grand Rapids, Mich. "They wouldn't be here if it weren't for us."

On July 28, the Kehoes announced the arrival of twins, Ethan and Bridget, at University Hospital in Ann Arbor. Overjoyed, they took the babies home Aug. 3 and prepared for a welcoming by their large extended family.

A month later, a police officer supervised as the Kehoes relinquished the swaddled infants in the driveway.

Bridget and Ethan are in the custody of the surrogate who gave birth to them, Laschell Baker, of Ypsilanti, Mich. Baker had obtained a court order to retrieve them after learning that Kehoe was being treated for mental illness.

"I couldn't see living the rest of my life worrying and wondering what had happened, or what if she hadn't taken her medicine, or what if she relapsed," said Baker, who has four children.

She and her husband, Paul, plan to raise the twins.

Boundaries tested

The creation of Ethan and Bridget tested the boundaries of the field known as third-party reproduction, in which more than two people collaborate to have a baby. Four parties were involved: the egg donor, the sperm donor, Baker and the Kehoes. Two separate middlemen brokered the egg and sperm.

About 750 babies are born each year in this country through gestational surrogacy, and twice that many surrogacies are attempted. Most are less complicated than the arrangement that resulted in the births of Ethan and Bridget.

But as the dispute over the Michigan twins reveals, surrogacy arrangements that go wrong can have profound implications, particularly for the children. Surrogacy is largely without regulation, with no authority deciding who may obtain babies through surrogacy or who may serve as a surrogate, according to interviews and court records.

Doctors' control

Instead, surrogacy is controlled mainly by fertility doctors, who determine which arrangements are carried out and who earn money by performing the procedures. While some agencies that coordinate surrogacies and some clinics that carry them out strictly adhere to guidelines, others do not, the interviews and records show.

In some cases, parents must go through adoption proceedings to gain legal custody of the children. But even in those situations, the normal adoption-review process is upended. In surrogacy, prospective parents with no genetic link often create their own baby first and then ask for legal approval, potentially leaving judges with little alternative. Some states allow prebirth orders that place the parents' names on the birth certificates without any screening.

When disputes arise after the babies are born, the outcome can vary from state to state. In California, considered a friendly state for surrogacy, courts have upheld the validity of surrogacy contracts, meaning the people who hire surrogates are likely to keep the babies if a dispute arises.

But a statute in Michigan, where Ethan and Bridget were born, holds that surrogacy agreements are unenforceable, giving the woman who gives birth a strong case if she decides to keep the babies.

Most states are silent on surrogacy, according to an analysis by the Center for American Progress, a liberal research group.

"When (surrogacy arrangements) ... go bad, it's so sad," said Mitzi Heineman, the Michigan broker who supplied Kehoe's donor eggs. "You feel sorry for the baby. Who are the baby's parents?"

Four-year-old twin girls in Union City, N.J., have lived under such uncertainty. Their short lives have included two tours in the foster-care system.

New Jersey child-welfare officials said this year that the girls were neglected by Stephen Melinger, 62, who arranged their birth almost five years ago. In July, a New Jersey judge exonerated Melinger of those accusations. But the Supreme Court in Indiana, where the girls were born, recently ruled that his adoption of the twins was improperly executed and must be redone.

Rewarding experience

Doctors say when surrogacy arrangements go smoothly, they are rewarding.

"It's been unbelievably satisfying seeing these families grow that otherwise wouldn't have," said Dr. James Goldfarb, director of fertility services at the Cleveland Clinic and president of the Society for Assisted Reproductive Technology. Goldfarb was involved in one of the world's first gestational surrogacies in 1986. Today, the Cleveland Clinic takes part in eight to 10 such arrangements a year, he said.

In another case in New Jersey, a woman agreed to be a surrogate for her brother and his male partner, who donated sperm. But the three are now playing tug of war over 3-year-old twin girls. The woman is seeking custody and a declaration that she is the mother, even though she did not supply the eggs. Lawyers in both New Jersey cases asked that the children's names be withheld for reasons of privacy.

The New Jersey physician who performed the procedure, Dr. Susan Treiser, did not require psychological screening and waived what is commonly a prerequisite for being a surrogate: that she must have given birth to her own child.

Model act

Partly in hope of standardizing the disparate laws governing surrogacy, the American Bar Association has developed a model act for state legislatures. Judges across the country have said they need guidance to sort out complex legal issues posed by reproductive technology. One section of the proposal says that when prospective parents have no genetic link to the babies, surrogacies would require preapproval by a court in a process that would include a home study.

Lawyers who handle surrogacy arrangements say those cases represent only 5 percent of surrogacy cases, but they are the riskiest.

George Annas, a bioethicist who is chairman of the health-law program at Boston University, said, "This is the main problem with commercialization, seeing children as a consumer product."

Between brokers, legal and medical expenses and surrogate fees, a successful surrogacy can cost prospective parents $80,000 to $120,000. An estimated 100 agencies advertise themselves as surrogacy brokers.

"People can get into this business easily," said Charles Kindregan Jr., a professor at Suffolk University Law School who was co-chairman of the American Bar Association committee that drafted the model legislation.

Experienced agency

Surrogate Mothers, one of the older agencies, advertises on its Web site that it can arrange surrogacies for less than $50,000.

Laschell Baker and her husband, Paul, have picked new names for Ethan and Bridget: Peyton and Dani. For Baker, 35, they are babies Nos. 8 and 9. In addition to her four children, she has delivered three other surrogate babies, including another set of twins. Her previous surrogacy arrangements went smoothly.

On Tuesday, July 28, the babies were born by cesarean section. The following Monday, in court in Ann Arbor, Baker said she first learned of Amy Kehoe's psychiatric history.

During a hearing to transfer guardianship to the Kehoes, Scott Kehoe said his wife had paranoid schizophrenia. Kehoe's psychiatrist listed the diagnosis as a "psychotic disorder not otherwise specified." Kehoe takes an antipsychotic.

Before her diagnosis in 2001, Kehoe told the judge, she had self-medicated, and that was the reason for her arrest on charges of cocaine use and driving under the influence.

Stunned at disclosure

Adoption experts said mental illness was not a bar to adoption if the illness was under control and the patient went to doctor's appointments and took medications. Kehoe's psychiatrist wrote a letter saying she would be a good mother because her disease had been fully controlled for eight years and she had no symptoms.

Baker, however, said she was stunned at the disclosure and became concerned that Kehoe might relapse and be unable to take care of the twins.

"I'm not going to be the one that's going to feel guilty if something happens," Baker said.

Kehoe said Baker's decision made no sense in light of her doctor's statement and other letters of strong support. "Does she really think she knows better than a psychiatrist who has known me for nine years?" Kehoe said.

Instead, she said, Baker "legally stole our babies from us."

Because Michigan law states that surrogacy contracts are void and unenforceable, it was an easy matter for Baker to go to court and have the Kehoes' guardianship rescinded.

Last month, Amy and Scott Kehoe made a decision.

"We are stopping the fight to get our babies back," Amy Kehoe wrote in an e-mail.

Kehoe still has hope, though. It is stored in a tank of liquid nitrogen at IVF Michigan. The tank contains 20 frozen embryos made from the eggs and sperm she bought.