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Latest Surrogacy News
Surrogacy more common but not in
region
By Mary Pickels TRIBUNE-REVIEW
Sunday, November 7, 2004
Eighteen years ago, a
woman who agreed to conceive, carry and then turn
over a child to a man and his infertile wife had a
change of heart. Thus, the nation was introduced to
Baby M, and surrogacy came out of the closet.
After agreeing to
accept $10,000 for "compensation for services and
expenses," Mary Beth Whitehead, of New Jersey, was
artificially inseminated with William Stern's sperm.
Nine months later she delivered a baby girl,
renounced payment and tried to keep the child.
The lengthy court
battle was decided in 1988, when the Supreme Court
of New Jersey invalidated the parties' surrogacy
contract. Stern was awarded custody, with Whitehead
given weekly visitation rights.
That decision
prohibited additional surrogacy arrangements in New
Jersey, unless the surrogate mother volunteered to
act without payment and was given the right to
change her mind later.
Since then, surrogacy has
become a more commonly accepted method of achieving
parenthood.
Celebrities, including
former "Good Morning America" host Joan Lunden and
former "Frazier" actors Kelsey Grammer and Peri Gilpin,
all have publicly acknowledged using surrogates.
Surrogacy laws vary
state by state.
In Pennsylvania, no law
regulates surrogacy.
Couples become parents
In western
Pennsylvania, surrogacy is not a common practice at
hospitals offering other reproductive services.
Dr. Anthony N. Wakim,
board certified in obstetrics, gynecology and
reproductive endocrinology and infertility, is medical
director of assisted reproductive technology at
Pittsburgh's Magee-Womens Hospital in Oakland.
The hospital lists
surrogacy among its services, but Wakim prefers the term
"gestational carriers." As opposed to "traditional"
surrogacy, in which the surrogate donates her own egg,
gestational carriers are genetically unrelated to the
babies they carry. The embryos are formed from the eggs
and sperm of the biological parents.
The hospital does not
offer traditional surrogacy because of the potential for
legal problems.
Gestational surrogacy,
Wakim said, is "less of an entangled issue."
The practice is only a
few years old at Magee, he said, and is usually done for
women who have fertility problems.
Although the practice
is growing, Wakim said, "It's obviously not for
everybody."
Typically, he said, the
intended mother should be under age 40 and have a good
reserve of eggs.
The age of the
surrogate is important as well.
"The younger they are,
the more children they have had, the better off they
are," Wakim said. "Older women tend to have more
(medical) problems -- high blood pressure, diabetes."
The hospital does not
recruit surrogates; many couples, he said, come in with
a potential surrogate, often a family member or friend.
A great deal of
counseling is provided to participants, he said. After
conception, the carriers then visit the obstetrician of
their (or the parents') choice.
The resulting
pregnancies tend to be successful, Wakim said.
He estimated the
hospital performs about 10 such procedures a year.
"We get patients from
all over Pennsylvania, West Virginia, Ohio, occasionally
overseas," he said.
Wakim views the option
as simply another way to help a couple have a family.
"It would be a tragedy
if these couples are not helped," he said. "The
ingredients are there."
Legal accountability
Perhaps the most
watched surrogacy case at present involves Erie County
resident Danielle Bimber and Ohio resident James Flynn.
Bimber, the mother of
three children with her husband, agreed to be a
surrogate for Flynn and his fiancee, Eileen Donich.
Flynn is the biological father of three boys who will
turn 1 year old Nov. 19, conceived with an anonymous egg
donor and carried by Bimber.
Bimber said Flynn and
Donich failed to claim the boys after their birth. She
took them home from the hospital and is seeking custody.
Erie County Judge Shad
Connelly awarded her temporary custody in April. Flynn
and Donich have visitation privileges.
Flynn has characterized
Bimber as someone who "was paid for a service."
Connelly has asked the
Legislature to take a legal stand on surrogacy contracts
and how enforceable they should be.
Pittsburgh attorney
Bruce Wilder believes that if Pennsylvania had its own
model of the Uniform Parentage Act, drafted by the
National Conference of Commissioners on Uniform State
Laws, "This case probably never would have happened."
The UPA was adopted by
19 states in 1973, laying out rules for the presumption
of parentage. The original law did not address certain
issues, including divorce and infertility.
A newer version
addresses the "surrogate mother," and suggests that a
gestational agreement be reviewed by a court, just as an
adoption agreement is.
Wilder practices health
law with the firm Wilder & Mahood. He also serves on the
American Bar Association's law of genetics and
reproductive technologies committee. He has not dealt
with any surrogacy cases in this region.
After Baby M, he said,
a few states adopted the Uniform Status of Children of
Assisted Conception Act. It includes court approval of
surrogacy agreements.
"It's a pretty good
plan as to how to handle these cases," Wilder said. "The
process of going to court puts them (intended parents)
on the record as legally bound to be parents of this
child."
Wilder has no problem
with the concept of surrogacy in general. He does think,
however, that forms of assisted reproduction and clinics
should be regulated.
"My own personal bias
is, if I wanted to raise a child and I could not have
one with my own genes, I would adopt one," Wilder said.
"But some people want a child with their own genes. ...
I think it (surrogacy) is a reasonable thing to do, make
some embryos and find a surrogate. I think it's
something that should be permitted."
Baby on board
Attorney Melissa
Brisman has a reproductive law agency and practices in
New Jersey, Massachusetts, Pennsylvania and New York.
Because she was unable to carry a child, her eggs were
fertilized with her husband's sperm and placed in a
gestational carrier, a process that has produced three
children for the couple.
In Maine, where her
first two children were born, she successfully
petitioned the court to have her and her husband's names
placed on the babies' birth certificates. Otherwise,
they would have had to adopt their own biological
children.
Brisman's agency
advertises throughout the country, including recently in
the Greensburg Pennsysaver. The ad sought women to carry
couples' biological babies. It requested women ages
21-45 and required that they have previous birth
experience. Nonsmokers were requested and "generous
compensation" offered.
Magee was the only
surrogacy facility Brisman knew of in the western part
of the state. There are several in central and eastern
Pennsylvania.
"People who want a baby
will travel," she said.
Would-be parents, she
said, need a carrier and paperwork. The firm also helps
the couple and surrogate select a clinic for the medical
procedure.
The result, she said,
is the birth of more than 100 babies a year.
"You want somebody who
wants to do it, who wants to help somebody, somebody
who's healthy," Brisman said.
Fees for parents,
including carrier reimbursement, attorney's fees,
carrier insurance and other related costs, can average
$30,000 to $40,000, according to Brisman's agency. That
figure excludes medical costs for the in vitro
fertilization procedure, which some couples' own
insurance policies will cover.
Obtaining birth orders
before the second trimester, she said, can help
eliminate situations like the one in Erie. Although a
surrogate may later change her mind, a pre-birth order
shows that she relinquished any claims during her
pregnancy.
Brisman said none of
her surrogates have reneged after giving birth.
"The case in Erie
County puts a bad name to the entire process," she said.
If the case leads to
legislation that halts surrogacy in Pennsylvania, she
said, "It would be a disgrace. ... Usually, these things
go off without a hitch."
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