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James Flynn and long term partner Eileen Donich outside a Pennsylvania courthouse during the triplets custody case in 2004. He eventually got full custody in 2006.

Parenthood through Surrogacy

By Dr J Kabyemela, MD

People may not know this but demand and actual incidence of surrogacy continues to go up.

Surrogacy: What it is

The basic tenet of surrogacy is that a woman bears a child for another woman or couple and surrenders the child at birth. The one carrying the pregnancy for other people is therefore the surrogate mother. This is still the case even if she was using her own egg. We shall discuss this further very shortly. The prospective parents are known as ‘commissioning parents’

Surrogacy is almost always a private social (rather than medical) arrangement. Exact figures of the rate of surrogacy are therefore hard to come by.

Who seeks a surrogate mother?

Various individuals and couples seek to have a surrogate mother for their wanted child or children for varying reasons. These include:

Infertility: When a prospective parent is found to be unable to have children herself, she may opt to have a surrogacy arrangement.

Womb abnormality: Some womb abnormality may make it impossible for the woman to carry a pregnancy herself.

Womb surgery aftermath: A woman may undergo womb surgery which renders the organ unable to carry a pregnancy or in a state where it is deemed dangerous for her to carry a pregnancy.

Post-hysterectomy: A woman who has lost a womb through surgery (hysterectomy) usually due to cancer (usually of the cervix in this age group). If she wants a child or children, she may opt for surrogacy.

History of recurrent miscarriage: Some women find that they successfully conceive without difficulty but pregnancies repeatedly end up in miscarriage. There is usually an underlying medical condition such as cervical weakness or anti-phospholipid syndrome (APS). If the usual remedial measures do not work, the prospective parents may go for surrogacy.

Serious medical conditions: For a woman with a serious medical condition such as heart failure or complicated cystic fibrosis, a pregnancy might be dangerous, even life threatening. For such a woman, if she was keen to have a child, surrogacy might be one of the options.

Male gay couple: For obvious reasons, neither of the couple can carry a pregnancy. One of the options they have to have a child is via surrogacy.

These and several other individual reasons are why surrogacy motherhood continue to increase.

Types of Surrogacy:

Traditional surrogacy: This is where the surrogate mother uses her own egg and the sperm of the commissioning father. This means, the surrogate mother will be biologically related to the child. Half of the genetic material will be the surrogate mother’s.

Traditional surrogacy is mainly performed via artificial insemination. The commissioning father provides the sperm which the surrogate mother self-inseminates at home. Occasionally, this is done by a health professional in a fertility clinic. In some situations, especially where the commissioning mother is single, donated sperm is used. The arrangement for sperm donation is usually done privately.

Straight surrogacy is also known as ‘Natural surrogacy’; ‘Partial surrogacy’ or ‘Straight surrogacy’. All these terms mean the same thing.

Gestational Surrogacy: This is the second type of surrogacy. This is also known as ‘Full surrogacy’ (as opposed to ‘partial’ above). In gestational surrogacy, the embryo is created outside the womb via IVF, normally using the commissioning parents’ sperm and egg. The embryo is then transferred into the womb of the surrogate mother. This type of surrogacy is preferred by couples who are keen to have a child who is biologically theirs but where the mother is unable to carry a pregnancy.

In gestational surrogacy, the surrogate mother is biologically/genetically unrelated to the child. Gestational surrogacy is also known as ‘host surrogacy’ referring to the fact that the surrogate mother is simply a host for the baby and has no biological relationship to it. It is also called ‘IVF surrogacy’ in reference to the way the embryo is created.

Arrangements for surrogacy

Altruistic arrangement: This is where there is no commercial component. The surrogate mother does it to help the commissioning parents.

Commercial arrangement: There is financial compensation by the commissioning parents to the surrogate mother.

Availability of Surrogacy

The law governing surrogacy varies widely from country to country.

Surrogacy in the UK, Spain, China, Australia…

Altruistic surrogacy is permitted but commercial surrogacy is strictly banned. With altruistic surrogacy in the UK, the surrogate mother can still be compensated for what are termed ‘reasonable expenses’. Individuals found to be engaging in an activity which appears to be contravening the spirit of this law would be prosecuted. Many other countries have similar restrictions.

Surrogacy in the United States…

Those who are interested in the subject of surrogacy will be aware of the Baby M case in New Jersey from the late 1980s.

In 1985, biochemist William Stern and his wife entered a private agreement with Mary Beth Whitehead to pay her $10,000 for her to be a surrogate mother via artificial insemination using his sperm (traditional surrogacy). The surrogate mother changed her mind after the birth and wanted to keep the child. A mighty and protracted legal wrangle followed. It was 22 months after the birth that the New Jersey Supreme Court eventually gave custody to the Sterns. However, that was because the justices decided the Sterns could provide a more stable home. They were scathing in their condemnation of any sort of commercial surrogacy, writing in one part of their judgement that ‘ …paying women to be surrogate mothers is  illegal, perhaps criminal and potentially degrading to women. …There are, in a civilized society, some things that money cannot buy’. The story of baby M was even made into a movie.

There is also the well known case of Pennsylvania’s Danielle Bimber.  She was the surrogate mother of triplets using the commissioning father’s sperm (James Flynn) and a donated egg by another woman. Danielle decided (after the birth) to keep the children. That was in November 2003. Multiple court cases ensued. It all culminated in the commissioning father and his partner being granted custody. However, it took over three years, shed-loads of money and, doubtlessly, a lot of heartache on all parties involved.

Continues next page

James Flynn surrogacy