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Latest Surrogacy News
Milton woman finds joy
as surrogate mom, but
legal issues cloud
practice
(Published Sunday,
December 19, 2004)
By Sid Schwartz/Gazette
Staff
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Tina Cagney
has been a
surrogate mother
or gestational
carrier four
times. The
Milton woman has
given birth to
five children
for couples who
couldn't
conceive on
their own. 'I
felt good about
doing it,' Tina
said.
Dan
Lassiter/Gazette
Staff
Order a
reprint of this
photo
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MILTON-Sixteen weeks
into Tina Cagney's
fourth surrogate
pregnancy, an ultrasound
of the fetus showed a
problem.
Lots of markers for Down
Syndrome.
"Everybody went into
worry mode," Tina said.
And difficult questions
arose.
Would the New York
couple for whom Tina was
carrying the fetus want
her to continue with a
less-than-perfect child?
Who would decide if the
pregnancy should
continue?
If she continued with
the pregnancy against
the couple's wishes, who
would be responsible for
the mentally retarded
baby?
Tina was not genetically
related to the fetus
inside her. Doctors had
implanted the New York
woman's fertilized egg.
"What if it's Down? What
are you guys going to
do?" Tina and her
husband, Christopher,
asked the New York
couple.
"We're not going to
worry about that now,"
the New York man told
them.
"The first few days were
stressful," Christopher
said.
The man called
repeatedly from New
York.
"I think he wanted me to
magically reassure him,"
Tina said.
"Finally we said,
'There's nothing we can
do. We just have to
wait,'" Christopher
said.
And so they waited.
***
New York and several
other states made
surrogacy illegal in the
wake of the 1988 Baby M
case, in which a New
Jersey surrogate mother,
Mary Beth Whitehead,
refused to surrender the
child she had been
contracted to carry.
A half dozen states have
since passed laws
allowing but regulating
surrogacy.
Wisconsin is among more
than two dozen states
that have no laws
governing the practice.
Consequently, Wisconsin
attracts people from
states where it is
outlawed.
Couples desperate for a
child may have a
relative or friend act
as a surrogate.
Otherwise, they may have
to pay about $20,000 to
hire either a surrogate
mother, who provides her
own egg that is
artificially
inseminated, or a
gestational carrier, who
carries another woman's
fertilized egg.
"They're not paying for
a baby. They're paying
for the risks this woman
is taking," said LeeAnn
Schulz, program
administrator at the
Surrogacy Center in
Madison.
In addition to paying
the surrogate, couples
cover legal and medical
expenses plus fees to
businesses that
specialize in matching
surrogates with intended
parents.
"They're going to spend
well over $50,000 for
sure," Schulz said.
But while surrogacy
fills the arms of
couples aching for
children, the practice
remains controversial,
which is one of the
reasons that states such
as Wisconsin have been
unable to pass laws
addressing it.
"I think there was a
sense that the right
answer on this was
probably hard to figure
out," said Alan Weisbard,
UW-Madison associate
professor of law,
bioethics, Jewish
Studies and religious
studies.
Weisbard was executive
director of the New
Jersey bioethics
commission during the
Baby M case.
"There was a feeling of
commodifying a women's
body that raised some
concerns akin to
prostitution and raised
some concerns akin to
baby selling," Weisbard
said.
***
Tina, 34, started
thinking about being a
surrogate mother 10
years ago.
"Originally, I had heard
it on the news. I said,
'That would be
interesting to do,' but
I never thought we could
do it."
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Christopher
Cagney has been
a fully
supportive
partner in his
wife Tina's
decision to
carry and give
birth to five
babies for other
couples who
could not
conceive. 'I
kind of think of
it as being an
uncle, but not a
parent,' he
says. The Milton
couple also has
three children
of their own.
Dan
Lassiter/Gazette
Staff
Order a
reprint of this
photo
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Then she saw a
classified ad in The
Janesville Gazette:
"Looking for surrogates.
You can help a family.
Call now."
Tina already had three
children-sons ages 3 and
7 and a 9-month-old
daughter. Christopher,
now 41, is an
electrician. The Milton
family has always lived
modestly.
"We had the boys and
finally a girl. We
thought we were pretty
complete," Tina said.
"That's one of the
reasons why we didn't
see any harm in pursuing
the surrogacy."
After much thought, they
decided to call the 800
number in the classified
ad.
"We thought it would be
six months to a year
before they found
somebody, but that
wasn't the case,"
Christopher said. "It
was about two weeks."
A couple from Florida
needed help. The woman
couldn't produce eggs or
sustain a pregnancy
because her mother had
taken DES, a drug
intended to prevent
miscarriages.
"That one, because I was
a true surrogate, we
kind of had to match up
exactly with what the
mother looked like,"
Tina said. "They wanted
the baby to look like
the mother."
The Florida couple flew
to Wisconsin and met the
Cagneys.
"I think they called us
back within a week and
said, 'We'd like you to
do it for us.'"
Tina was artificially
inseminated with the
Florida man's semen at a
Rockford, Ill.,
fertility clinic.
"The first time they
used frozen semen, and
it wasn't successful,"
Tina said. "The second
time they used fresh-he
walked out of the
office; they did their
cleaning, and I walked
into the office. We
crossed paths."
The Cagneys talked about
the surrogacy with their
children, especially
their 7-year-old.
"We explained that the
mother's tummy was
broken and she couldn't
carry children," Tina
said.
"Throughout the
pregnancy, we pretty
much let him know it's
somebody else's baby so
as not to shock him at
the end that there
wasn't a little brother
or sister at home,"
Christopher said.
They hired Madison
attorney Judith Sperling
Newton, who years later
would create the
Surrogacy Center in
Madison with her
partners.
***
"When a carrier and
intended parents decide
they want to go ahead …
the first thing we do is
a parenting agreement to
make sure they have
thought of everything,
so that everything is
well understood, that
nobody is unclear, that
nobody is taking
advantage of anyone,"
said Carol Gapen, one of
Sperling Newton's
partners at The Law
Center for Children &
Families in Madison.
All parties sign the
agreement, but it's
unclear whether such an
agreement would be
enforceable in a
Wisconsin court.
Gapen said the paperwork
makes it clear that the
intended parents are
paying the surrogate
mother or gestational
carrier for a service,
not for a baby.
Wisconsin adoption
statutes outlaw baby
selling.
"No way can we say we're
making this payment
contingent upon you
turning over this
child," Gapen said. "She
is offering to provide
this service. She is
paid regardless of what
the outcome is, whether
she turns over the child
or not."
***
Tina and Christopher
told family and close
friends in 1995 that
Tina was pregnant as a
surrogate.
"We didn't realize there
could be any negative
side to it but found out
that there was," Tina
said. "Our best friends
at the time, they did
not agree with it. They
thought it was just
terrible."
The friendship never
recovered.
"I think there's a lot
of people who considered
Tina's reaction or my
reaction to giving the
baby up, like 'How can
you do that?'"
Christopher said.
"I basically looked at
it as the baby would not
be without that couple,
so I figured it was
their baby," Tina said.
Her first surrogate
pregnancy was free from
medical complications
and had only one legal
hiccup. Seven months in,
the Florida couple told
Tina that they wanted
her to give birth in a
different state, where
laws recognize surrogacy
and give intended
parents more rights.
"They kept hounding me,"
Tina said. "They said,
'We're afraid you're not
going to give us our
baby.' I said, 'I'm
going to give you the
baby, but it's going to
be at my hospital.'"
***
Because Wisconsin law
is silent on surrogacy,
intended parents have no
rights.
Wisconsin law has long
included a mechanism to
establish the legal
paternity of a child,
but nothing in the
statutes addresses
maternity. The woman who
gives birth is legally
the mother unless a
judge says otherwise.
Usually, convincing a
judge is not difficult,
Gapen said.
Before the birth,
lawyers often ask a
judge to find that the
intended mother and
intended father are, in
fact, the legal mother
and legal father.
"We prefer to establish
parentage because that's
really the facts," Gapen
said. "These two people
are the biological
parents of this child,
so we prefer to do that.
Otherwise what you have
is a woman adopting her
own biological child."
Although it is commonly
done, some Wisconsin
judges question whether
they have authority to
establish maternity.
***
Tina gave birth to her
first surrogate child in
November 1995 in
Janesville.
The Florida couple was
in the delivery room
with Christopher and
her.
"The father cut the
cord," Tina said. "They
put the baby up on me.
They wiped her off, and
I handed her to the mom.
"I think in that moment
is when it made it all
worthwhile. She was
crying. I think they
both were. They were
pretty much speechless.
They kept saying, 'Thank
you. Thank you. Thank
you. She's beautiful.'
"I felt good about doing
it," Tina said. "I
actually felt guilty for
not feeling guilty.
People kept asking me,
'Don't you feel a little
guilty?' and I didn't. I
thought it was a good
thing."
"We had prepared the
whole time," Christopher
said. "I knew it wasn't
our baby from start to
finish. I kind of think
of it as being an uncle,
but not a parent."
"I guess if you're not
there in the moment, you
wouldn't understand it,"
Tina said. "But when you
hand them their baby,
there's no question
about it. It's the right
thing."
The Cagneys thought they
were done with
surrogacy.
But then Tina found a
Web site that listed
people who were looking
for surrogates.
"They all had stories to
go along with them," she
said.
She and Christopher
decided to do it again.
Money was a small part
of the decision, they
said.
During the first
surrogacy, the Florida
couple had paid the
Cagneys installments
totaling $11,000.
"Everybody hears the fee
and says, 'Wow!' But you
don't get paid all at
once; you get paid in
installments. And what
you endure for it is
priceless," Tina said.
She has nerve damage in
her legs from injecting
herself repeatedly with
a syrup-like hormone to
prepare her uterus for
implantation.
"No money is going to
cover that," she said.
In 1997, Tina agreed to
be a gestational carrier
for a Colorado couple.
The woman was also a DES
Daughter.
"She could produce
plenty of eggs but
couldn't conceive.
They'd had
miscarriages," Tina
said.
Because Tina's egg was
not used, she is not
genetically related to
the baby she bore.
"It's much different,"
Tina said. "I didn't
have to worry about
people saying, 'Your
genes are scattered all
over the world.'
"It's easier
emotionally. I didn't
have the genetic bond. I
could truly say, 'You
are your parents'.
"I guess someday I have
to worry about whether
the first one comes back
and says, 'Why did you
do it?' I would say, 'I
did it to help your
parents. You wouldn't
have been without your
parents.'"
Tina gave birth to the
Colorado couple's child
in January 1998.
Tina had her own fourth
child in October 1999
and received a call from
the Colorado couple a
short time later. They
were trying to have
another child, but their
surrogate had fallen
through.
"I said, 'Give it a
little bit, give me a
chance to heal up, and
we can do it again,'"
Tina said.
"I think that's what
they were hoping for,"
Christopher said.
In August 2001, Tina
gave the Colorado couple
a set of fraternal
twins.
Everybody had known that
twins or even triplets
were possible. Doctors
always implant more than
one fertilized egg
because rarely do all of
them attach and grow.
"One of our conditions
in the contract was that
you won't put any more
eggs in than you want
babies. If you want
three, then put three
eggs in," Christopher
said.
***
Schulz said the
Surrogacy Center surveys
gestational carriers and
surrogates for their
views on abortion and
selective reduction,
which is the elimination
of extra, unwanted
fetuses.
"We pay attention to it
in matching carriers
with intended parents,"
Schulz said. "It's a
really big issue, and we
need to make sure we're
careful on that.
"Sometimes, it may be
harder to match a
carrier who is
completely opposed to
abortion or selective
reduction. Most of them
want the option. We need
the intended parents to
feel comfortable that
they can be open to a
carrier about that
option," Schulz said.
"We don't want to match
people and start a
relationship and not
have them agree on
what's going to happen
if there's more than two
babies."
***
After delivering the
twins by Cesarean
section, Tina was wiped
out. For the first time
in all her pregnancies,
she suffered post-partum
depression.
She wasn't interested
when her attorney,
Judith Sperling Newton,
called in early 2002.
"She said, 'We started
our own center now, and
we really could use
you.' I said, 'No, I
think we're done.'"
But eventually, Tina and
Christopher changed
their minds.
"I called her and asked,
'Do you still need
somebody?' She said,
'Yup, I have a couple
right here in front of
me.'"
It was the couple from
New York. The woman was
another DES daughter.
"They had two daughters
that she had carried,
but she was on bed rest
the whole time," Tina
said.
The couple had gotten
pregnant again, but the
baby was stillborn.
"She decided she
couldn't do it anymore,"
Tina said.
The Cagneys had been
paid $15,000 and $20,000
for Tina's two
pregnancies with the
Colorado couple. The New
York couple would pay
$30,000.
"The first time, it was
95 percent to help
somebody," Tina said.
"The second time was the
same way.
"The third couple, the
money factored in a
little more. We felt we
were done."
The Cagneys flew to New
York in mid-2003 for
implantation. None of
the eggs attached.
Two months later, they
tried again with four
eggs. Three attached.
Tina miscarried one at
six or seven weeks, and
the remaining two
stopped growing at 10
weeks.
Tina had her uterus
scraped.
"I recovered from that,
and they wanted to go
try again," she said.
Of the 27 eggs harvested
from the New York woman,
three good ones
remained.
"Tina and I had already
talked about it: If it
doesn't take, they'd
have to find somebody
else," Christopher said.
But the third try was
the charm. Tina became
pregnant in October
2003.
"I think all of us
throughout the whole
pregnancy were
apprehensive," Tina
said. "It was our first
taste of what these
couples go through."
At 16 weeks, the New
York man, who is a
cardiologist, wanted an
ultrasound examination
of the fetus, a test
normally not performed
until the 20th week of
pregnancy.
The ultrasound showed "a
lot" of markers for Down
Syndrome, Tina said.
"We had already accepted
the fact that if they
didn't want it, we would
have taken
responsibility for it,
more than likely
probably given it up for
adoption," Tina said.
For a week, they waited
for the results of a
test to check for
genetic birth defects.
"It was a long week
before we found out,"
Christopher said.
The results were fine,
and another ultrasound
at 20 weeks showed that
the baby was normal.
Tina gave birth in July
2004 and turned the baby
over to the New York
couple.
Medical complications
were behind them, but
legal hurdles remain.
Rock County Judge James
Welker has refused to
declare the New York
woman as the baby's
legal mother.
Welker relied on
existing paternity law
to find that the New
York man is the father.
In his decision,
however, Welker wrote
that he has no authority
under Wisconsin statutes
to declare anyone other
than the birth mother to
be the legal mother.
Legally, Tina still is
the baby's mother.
Welker wrote that he
expects his decision to
be appealed, saying the
Wisconsin Supreme Court
or Wisconsin Legislature
should address the lack
of law.
Tina said the New York
couple won't appeal.
"They're not going to,"
Tina said. "They're
going to do a
step-parent adoption in
New York, which is
ridiculous because it's
her child."
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