Rare challenges are decided case by case

Sunday, April 18, 2004  By Barbara White Stack, Pittsburgh Post-Gazette

In the new-age nursery, the babies of surrogate mothers usually settle in peacefully with the parents who contracted to produce them.

But occasionally, as in an Erie County case this month, the only settlement is one ordered by a judge.

Over the past decade, more than 140 Pennsylvania couples have gone home happily from maternity wards with infants born to them through surrogacy agreements.

The Kalikow family, of Bucks County, who got their son eight years ago, was among those.

By contrast, the case of J.F. and his fiance, of Cleveland, who thought they'd paid an Erie woman to bear their triplet boys, illustrates what happens when surrogacy goes awry and courts get involved.

Some states regulate surrogacy. Some states prohibit it. Pennsylvania is silent on the subject, leaving the murky moral and legal questions to be resolved by judges on a case-by-case basis with laws that never conceived babies created in test tubes.

The Cleveland couple met Danielle Bimber of Erie County through an Indiana firm, Surrogate Mothers Inc.

Its Web site, like those of the 100 or so other firms that arrange surrogate births in the United States, describes a boggling number of options and the fees.

The surrogate mother may charge nothing, especially if she's a relative, or $20,000 or more, especially if there's more than one baby. Her medical expenses may be as little as $1,000 or more than $15,000. The agency may charge another $10,000 or $12,000. With miscellaneous charges, the cost can rise above $50,000.

The baby may be conceived by artificial insemination using the intended father's semen or an unknown man's semen. The intended mother's egg may be used along with the intended father's semen or with donated semen. Or a donated egg and donated semen may be used to create an embryo or embryos that are implanted in the surrogate mother.

In Bimber's case, the embryos were created with semen from the intended father, J.F., and eggs from a donor woman who wanted no rights or responsibilities for the resulting children.

Three embryos were implanted in Bimber's womb, and though she was told there was only a 6 percent chance all three would survive, that's what happened.

J.F. and his fiance joined Bimber at some of her early doctor's appointments and agreed to pay her $1,000 a month when she had to quit work because of the triple pregnancy.

The babies were born Nov. 19, and J.F. and his fiance visited later that day. But they did not return for nearly a week, canceled an appointment to learn medical procedures necessary for the triplets' care, didn't name the boys, and didn't obtain a court order to have their names put on the babies' birth certificates and permit the hospital to turn the babies over to them.

Even when the hospital was ready to discharge infants A, B, and C, the Cleveland couple did not arrive. Bimber would tell a judge later that the couple informed her they were too busy with Thanksgiving obligations to pick them up.

So she decided to keep the babies with whom she is not genetically connected.

Later J.F. and his fiance filed for custody, and the legal battle for the babies began.

Kalikow's story is the absolute opposite. Far from fighting in court, Kalikow and his wife and the surrogate mother and her husband remain dear friends.

After several years of failed fertility treatments, Kalikow and his wife, who live in lower Bucks County near Philadelphia, advertised in newspapers for a woman willing to be a surrogate mother. The first they found became pregnant, but miscarried. Kalikow drove her home from the hospital.

The second woman they found was married with one child. Her pregnancy was uneventful, and she called the Kalikows at the onset of labor. They drove through blinding snow to be with her in the delivery room.

The surrogate mother and her husband insisted that the Kalikows and their son stay with them at their house west of Harrisburg for several days after the baby was released from the hospital.

Kalikow recalls her telling him then that she wanted him to know she'd never considered the baby to be hers.

He said he's heard several other surrogate mothers tell the couples he has represented the same thing.

That's when it works out fine.

To be sure it's fine, most surrogacy intermediaries require psychological testing of prospective surrogate mothers to see if they're capable of giving up a baby they've carried for nine months.

The question of why similar evaluation is not required of intended parents is raised in cases like the Cleveland couple's and that of a 26-year-old, unwed Northampton County man who received a son through surrogacy in 1994 then beat the infant to death before the boy turned two months.

Adopting couples are subjected to scrutiny -- criminal background checks, financial disclosure and home studies.

But, at least in Pennsylvania, that's not necessarily required of couples paying for surrogacy.

In the case of James A. Austin, who killed his baby, the surrogate mother sued the arranging agency contending it had a duty to conduct psychological screening and criminal investigations of the prospective parents.

An appeals court agreed, saying, "a business operating for the sole purpose of organizing and supervising the very delicate process of creating a child, which reaps handsome profits from such endeavor, must be held accountable for the foreseeable risks of the surrogacy undertaking."

Shad Connelly, the Erie judge who has ruled earlier this month that Bimber is the triplets' mother, laments in his opinion that the state legislature failed to pass a proposed bill to regulate surrogacy, including a provision that would have required criminal background checks and extensive medical and psychological testing for all parties.

But many of those involved in arranging surrogacy, including Kalikow and SMI director Steven Litz, are offended by the notion of investigating people paying tens of thousands of dollars for gestation services.

"Why does someone with a broken uterus have to go through a parenting test when no one else does?" Kalikow asked.

He cites Austin as an example. When he's released from prison, which could happen as early as three years from now, Austin could marry and have a child naturally, and no one would insist on psychological evaluations or home studies.

In adoption cases, Kalikow said, it's not unreasonable to demand a home study because the child is not related to the prospective parents.

In surrogacy, the child belongs biologically to at least one of the intended parents, he said, and a home study is not necessary when a genetic parent receives his child.

That, however, is not always true. In some surrogacy cases, the child is created with donor eggs and sperm, and so is not biologically connected to either intended parent.

Litz, who has arranged for the surrogate births of 235 babies, does not require a psychological evaluation of the prospective parents but does mandate a criminal background check.

Though the Erie and Austin cases raise questions about agencies negotiating deals for unwed people, Litz said he would do nothing different as a result of the Erie case.

He said his agency does not discriminate against prospective parents based on their race, religion or marital status.

Still, martial status became a key issue in the Erie dispute. Judge Connelly decided that the egg donor was not the triplets' mother because she never intended to serve that function. The father's fiance also was not the mother, the judge decided, because she has no legal tie to the father and no genetic or gestational tie to the babies.

As a result, the judge said, the surrogacy contract left the triplets motherless, which wrongly denied them their right to a mother. That made it invalid, he said, then declared the boys' mother to be Bimber, who carried them and nurtured them and performed the duties of a mother when she perceived the boys to be abandoned at the hospital by their biological father.

The decision combined with the technology of procreation create a conundrum about parenthood.

Is a sperm donor a father if he intends to be the father but not if he doesn't or changes his mind? Is a mother the person whose egg is used or the woman whose womb is used? Can a third woman, who provided neither egg nor womb, be the mother because she paid a fee and intended to be the mother?

Traditionally, courts have ruled against surrogate mothers seeking custody, even when they've provided the egg.

Though declared the triplets' mother, Bimber now faces a custody contest with the babies' father, as if they were a divorcing couple.

With appeals it could take years to resolve. At the end, if a judge orders the children turned over to the biological father, that transfer could cause the triplets psychological damage, even though the father and his fiance are permitted to visit them in the meantime.

The delay, the psychological cost and the lawyers fees could all have been avoided if Pennsylvania regulated surrogacy, said Erie lawyer Jim Richardson, who represents the biological father and his fiance.

"It would have helped the biological father and the surrogate mother," he said, "because there would have been some clear-cut guidance in cases like this, when the surrogate reconsiders before the children are released."