By David Ruppe  August 23, 2003

Aug. 23 — From a hotel room in Kuwait City Shani Russell caused quite a stir, barraging news organizations, aid agencies, members of the Canadian parliament, even Canada's prime minister with frantic e-mails asking for help getting out.
       
The Canadian embassy bought her a ticket earlier this month, escorted her to a plane, and she is now back in Canada, after risking possible arrest by Kuwaiti authorities for submitting to a medical procedure banned in the Islamic world and many other countries around the world.

The 28-year-old game designer and hairdresser from British Columbia went to Kuwait to become a surrogate mother for a couple she met and chatted with online through a Web site that matches couples with surrogates. She had signed an agreement with a couple there, agreeing to have their embryo transferred into her uterus.

The transfer was performed July 25, she said. Russell expected to return to Canada to carry and give birth to the child in California. They would receive the baby. She would receive a total of $10,000.

But things became complicated when she announced, citing a family tragedy, she would leave before the pregnancy was confirmed. Russell says she fled fearing she might be arrested because of the procedure, and claims the couple threatened to hold her against her will. "I was terrified."

The couple says nothing of the sort happened and says there is no proof to support her allegations.

Regardless, Russell's unusual story points to a little-noticed international market, present on the Internet, through which hundreds of couples each year bypass national bans to have mostly American women carry their children, usually because for medical reasons they cannot do so themselves.

Banned by Islamic Law

Since the birth of the first "test tube baby" in 1978, embryo transfers through in vitro fertilization — where an egg is fertilized outside the body and implanted into another's uterus — have become increasingly common around the world as the technology to perform them has improved.

Scores of companies have popped up in the United States and can be found on the Internet that match potential surrogates with couples who might pay anywhere from $35,000 to more than $100,000 for the surrogacy. One common reason for the procedure is that a woman has had her uterus removed because of cancer.

Surrogates themselves can make anywhere from $14,000 to $50,000, generally commanding a higher price for each successive surrogacy because of their perceived reliability.

But in the Islamic world, such surrogacy arrangements are forbidden, considered a form of adultery for which both man and woman can be punished by law. In Islamic culture, births from embryo transfers to persons other than a wife are considered illegitimate, experts say, since the person who gives birth is considered the mother, regardless of whether she shares genetic material with the child.

"It's so important to keep in mind that there are certain cultural things that play a very dominant role in the legal rulings," says Abdulaziz Sachedina, professor of Islamic Studies at the University of Virginia.

The practice has been an increasing preoccupation for Islamic religious leaders and bio-ethics scholars. Public debate was stirred up in April, when the Islamic Research Academy at al-Azhar in Cairo, Sunni Islam`s highest religious authority, issued a fatwa, or legal ruling, opposing surrogate motherhood by a woman other than a wife.

Islamic law permits more than one wife. And some experts say transfers from one wife to the other are allowed, though not all agree, and that solution may not be for everyone anyway.

So some Islamic couples quietly seek surrogacy agreements with Americans, or other foreign women.

The agreement Russell signed with the couple explicitly forbade either party from discussing the surrogacy with the public or the news media. "It is agreed between both Parties that the best interest of the Child born pursuant to this Agreement is best served by strict protection of each others' right to privacy," it said.

Getting Around the Bans

In the United States, surrogacy is allowed only in some states. California, considered the most tolerant of the practice, was the first state to legalize it in 1987. Surrogacy has been legal in Israel since 1996 after 25 childless couples petitioned Israel's High Court of Justice.

But some countries have specifically restricted the practice, including Australia, Egypt, France, Germany, the Netherlands, and the United Kingdom, as well as some U.S. states: Arizona, Michigan, New York, Utah and Washington. Canada is heatedly debating the subject, with the government considering a ban. The Roman Catholic Church in 1987 declared its moral opposition to and called for laws prohibiting all forms of artificial fertilization and embryo transfer.

Nevertheless, the Internet has helped expand the industry, enabling couples and surrogates from opposite ends of the globe to meet and negotiate through Web sites, chats and e-mail and work around their national prohibitions.

"The easiest analogy I can make is you can't gamble in most cases in the United States, but you can leave your state, gamble and bring the proceeds back," says Andrew Vorzimer, a lawyer specializing in surrogacy contracts and editor of the Journal of Assisted Reproductive Law, located in New Haven, Conn.

"They're regulating the conduct of their citizens … but there is nothing from stopping the couple's from coming overseas, working with United States or California surrogates for example, and bringing their biological children back with them, because the conduct didn't occur there," he says.

Vorzimer's firm handles about 600 surrogacy agreements a year, and he says about 35 percent of the couples are from countries where surrogacy arrangements are banned.

Surrogacy Agencies

Couples may choose non-American surrogates like Russell because they can be cheaper, says Vorzimer, but by doing so they can have trouble enforcing the usually American contract.

"Simply signing the contract in California and saying California law controls is insufficient. What a court's going to do is look at where substantial performance took place," he says.

In another, unrelated case, a 26-year-old British surrogate, Helen Beasley, is suing a California couple who she says backed out of their agreement when she refused to abort one of the twins she is carrying. She told a reporter the parents now don't want the children and she wants to find other parents for them.

Some surrogacy companies, such as Surrogate Alternatives Inc., of California say they only work with American surrogates, while the intended parents come from all over the world.

Such companies are essentially information brokers, creating profiles of prospective couples and candidates, helping pair them up and put them in touch with lawyers and doctors. In five years, the four-person company has arranged 58 births.

Coordinating surrogacies requires no special training or license other than a business license, says Jamie Williams, a surrogate coordinator for the company.

"I don't have any special certificate or special training. Just the experience of going through surrogacy and actually building families and I enjoy it," she says.

After the Fact

Surrogate parenting, Russell's contract noted, "is a new and unsettled area of law, and for that reason, no warranties have been or can be made as to the ultimate results, costs, liability or obligation … "

Russell's agreement was negotiated using a California lawyer under that state's jurisdiction without the parties ever meeting face-to-face.

Russell claims she found out about Kuwait's ban on out-of-wedlock surrogacy after she had the procedure performed.

A Canadian Foreign Ministery official confirmed embassy staff took her to the airport and put her on a plane for home.

"The Canadian Embassy staff went beyond the call of duty to assist Ms. Russell in departing Kuwait and facilitate her return to her country, including financial assistance," he said. "She's been repatriated, and of course she owes money to the crown now."

Russell's mother, Nicky, says she has since returned negative on a pregnancy test and considers the arrangement finished. Russell had hoped not just to help another couple in need, but to use the $10,000 to pay to have her own egg in vitro fertilized and implanted into her uterus, since she lacks fallopian tubes.

She says no longer wants to be a surrogate. "I want to warn people about who you meet on the Internet," she says.

Now she's considering a less complicated procedure for raising the money, her mother says: donating some of her eggs to others.