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Dec 13 2009

New Forms of Surrogacy May Cause Legal Nightmares

In the more than 20 years since Mary Beth Whitehead sued for the return of Baby M, the child she carried as a surrogate for William and Elizabeth Stern, the science of reproduction has expanded dramatically and with it new and difficult legal challenges perhaps unforeseen by the parties involved and their lawyers are emerging.

The Baby M case was fairly simple: Using William’s sperm and Mary Beth’s egg (and uterus), Mary Beth carried the baby to term and then gave the child to the Sterns as per the terms of their surrogacy contract. She was paid just for “medical expenses and out of pocket costs.” When she sued one month later for the return of the child (seller’s remorse, I guess) the case went all the way up to NJ’s highest court, which ruled that such contracts are invalid as a matter of public policy and awarded custody to the Sterns and visitation to Ms. Whitehead, in the best interest of the child. This of course is a result that could have happened if the baby’s biological parents had been married then divorced, so it was not that difficult a legal decision once the contract was invalidated.

But now comes the case of Lashelle Baker versus Amy and Scott Kehoe of Michigan. The Kehoes had tried to have their own children but were unsuccessful, so like any other American couple searching for a hard to find item, they went online and found Surromomsonline.com. They liked Ms. Baker’s ad because both Ms. Baker and the Kehoes lived in Michigan and indicated they preferred being in close contact with the other side during pregnancy. Ms. Baker had four children of her own and had been a surrogate mother for three others and she enjoyed sharing the pregnancy experience with the parental couple. Now here’s the twist: the child was produced by fertilizing an egg from an anonymous donor with sperm from a likewise anonymous donor. The fertilized egg was then implanted in Ms. Baker’s experienced uterus. So it took five people to produce this pregnancy: egg donor, sperm donor, Ms. Baker to carry it to term and Mr. & Mrs. Kehoe to pay the approximately $100K in costs. The Kehoes were overjoyed when Ms. Baker delivered a set twins, one boy and one girl (Two for the price of One!: it must have been a BOGO day on the website).

All was hunky-dory right up to date of the guardianship hearing which was when the transfer of the children was to occur formally. In response to a routine question from the court, the Kehoes revealed that Ms. Kehoe was on medication for paranoid disorder. Ms. Baker, upon hearing this, withdrew her consent for the transfer. She then decided to keep the children herself, despite Ms. Kehoe being more than 8 years trouble free and on medication. She claimed she couldn’t live with herself not knowing if Ms. Kehoe was staying on her meds.  She sued to void the surrogacy contract and keep the children. Now mental illness alone is not a bar to adoption in Michigan as long as it is under control. Ms. Kehoe’s psychiatrist submitted an affidavit saying that nothing prevented her from being a good mother as her disease had been fully controlled for 8 years and she had no current symptoms. (Interestingly, in the Baby M case, the Sterns sought a surrogate not because they were infertile, but because Ms. Stern had multiple sclerosis and a pregnancy and delivery could have permanently paralyzed her.)

So the Michigan court was faced with a custody battle in which neither side shared any DNA with the children at issue. Unfortunately for the Kehoes, the court sided with Ms. Baker as Michigan strongly opposes surrogacy contracts. In fact, the Michigan penal code says commercial surrogacy is a crime punishable by up to five years in prison and a $50,000.00 fine.  There is also a civil statute that says surrogacy contracts are unenforceable as being contrary to public policy. So the question arises:

WHO WAS THE KEHOE’S LAWYER!

The Kehoes claim to have  had consulted with a lawyer every step of the way. What kind of attorney would not look at the laws in Michigan and advise the Kehoes that might as well enter into a contract to buy the Brooklyn Bridge. The lawyer could have referred them to the 10 states that allow surrogacy contracts (most states have no laws regarding surrogacy and a handful are like Michigan’s). When she was reached for a comment after the decision, Ms. Kehoe said: “Justice does not prevail in this case due to Michigan’s laws.” What? I feel terribly for her, but she needs to understand that when the rule of law is properly enforced, justice does prevail. Here the statute was clear that the contract would be unenforceable so what else could a court do? If their lawyers did not advise them of these facts, then they should be sued for malpractice to at least get the $100K back that they spent.

But the case raises other interesting issues regarding parental rights. We all know that later on in life, many adopted children yearn to find their “birth parents” and many have been successful in getting adoption agencies to open their records to them. Well, could babies born of donated gametes do the same? It seems to me that the same rules should apply so that if an adopted child can find his birth parents, then the donated child should be allowed to find out who the donors were. What if the woman who carried the child dies before the baby is formally adopted? Does the husband who was married to surrogate automatically get the baby? What if he doesn’t want the baby? Can he be forced to support the child? None of these issues have been tested in a court of law yet but when they do arise, it will force us to realize that we are turning children into a commodity when we allow surrogacy without requiring that at least ONE parent have a genetic connection to the child.  Any state looking to add a law on this issue should at least make that one of its provisions.

So let’s catch up with the kiddies: Ms. Baker has renamed the children (now nearly six months old) but has not done so legally because she and her husband cannot afford the $300 fee for filing the name change in court. (Wait, who was mentally ill in this scenario? You have 6 kids but don’t have spare $300?) As for Baby M, Melissa Stern, as soon as she turned 18, she terminated Ms. Whitehead’s maternal rights and was legally adopted by Ms. Stern, who is still married to Mr. Stern. Melissa was graduated in 2008 from George Washington University with a degree in -get this – religious studies. In a recent interview, she says she felt awkward when she was studying the Baby M case in her bioethics class at GWU.

11 comments

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  1. lori frees

    omg, fascinating stuff. at least the twins will be too young to remember the surrogate’s change of mind and what happened.
    the laws do indeed need to ‘catch up’ to the present. i can only imagine what it’s like for those children who are taken from the only parent they have ever known, because the laws seem to favor the bio parents.
    but in this case – 5 ‘parents’?
    i knew of a woman who used her brother’s sperm and an anonymous donor’s egg…and carried the baby herself. oy!!!!

  2. Janet

    I don’t agree with your opinion about having genetic ownership to the child. What if the infertile couple can’t use their eggs/sperm? That would be a horrible law, restricting couple from using surrogates. Infertile couples have the right to have a family just like anyone else. There’s no reason why they should be banned from using a surrogate. A contract is a contract. It should be legal and binding, regardless of what state you’re in. It’s backwards thinking to think that surrogacy is illegal in some states. It’s really none of anyone’s business how a couple decides to have a baby. And don’t start with the “they can adopt” nonsense. Adoption is not an option for everyone.

  3. Oscar Michelen

    Dear Janet: I understand wholeheartedly the frustration of folks who cannot have a child and see surrogacy as a viable means to that end. I don’t however understand why “adoption is not an option for everyone” so maybe you can clarify that part of your comment. My point was more concerned with the child who grows up and wants to know about his natural parents and what would be the rights and obligations of those natural parents.

  4. John

    Ocsar,

    I would encourage you to review the number of failed adoptions where there is adoption fraud, issues with state foster care systems and adoption, and the nightmare that international adoption has become since the Hague treaty was implemented. These institutionalized difficulties in adoption may be a counterpoint to your statement and it’s inference that adoption is easy to accomplish.

  5. Oscar Michelen

    John – I agree with you that adoption is not easy, far from it. In fact, I have dealt with two difficult cases over the past few years of adoptive parents who reneged on the promise and tried to keep their babies. It was heartbreaking all around.

  6. crystal

    See, I know from hearing from the surrogate that it was not about the money to change their names it was about having the time to go to court as her husband works crazy shifts… the names are legally changed ..also Kehoes never told her about her psychotic disorder or criminal past before she was pregnant. Also Mr.Kehoe said that he didnt want one of the babies if he/she wasnt perfect ..he didnt want a handicap child, Not only that I remember seeing that he also had an dui as well…I watched dr.phil shows and let me tell you mrs baker held her ground even after being attacked..she wasnt paid for doing this and they craizer thing was , after the birth the surrogate had to take the babies home from the hospital because the potential parents did not get the legal stuff done for taking them home…i dont know i think the kehoes both have issues and are not very intelligent

  7. Oscar Michelen

    Crystal – Thanks for the follow up. I think it does sound like at the very least there were two sides to this story, but the main issue of concern is what are the legal rights over a baby who has no genetic connection to any one. Should the person who just (and I know its a big just) carried the baby automatically get all the rights? And why does the surrogate have a right to know about the past mental health and criminal record of the person whose baby she’s carrying? If we are going to treat this as a commodity, then the surrogate is merely the vessel for carrying the child through to delivery and should not have a say in who gets to have a child. Would you deny parenthood to people with prior mental illness thats under treatment or how about those with criminal records, especially DWI?

  8. crystal

    I havent heard much about the Kehoes or Bakers lately I just know that mrs.baker has a written story and she is now speaking on this. From waht I heard the babies are with the Bakers now and Ive seen the articles and the babies look great. I’m looking forward to seeing the book personally I think I want to see her speak, and see what she has to say as well…
    As far as denying parents because of prior mental illness and parenthood, well her condition is schizophrenia and psychosis and she is currently being treated for this and seeing a psych doc. Not sure , but i wouldnt want to leave my children to have them baby sate by this women let alone give her newborns…

  9. Oscar Michelen

    Thanks for the update Crystal.

  10. susan

    I know the Kehoes and Cystal has got this all wrong. Amy does not have schizoprenia.Her Dr said she had been 100% compliant with treatment and meds for 8 years and that she would be a good parent. They were approved by a Michigan home study and Dr Phil also offerd to pay for 6 experts but Laschelle refused. If you watched the 2 Dr Phil episodes you will see how this woman scammed the Kehoes. Most of the comments suggest Lashelle is the one with untreated mental illness.The Kehoes were naive and trusting of Shelly who had done 2 surrogacies for another couple. They also had an attorney who knew little about surrogacy and more about adoption. The previous couple used their own eggs and sperm .Shelly also states on camera in a local t.v news interview they did not have the money to change the babie’s names.This was out of her mouth. So cystal get your facts straight. Sadly Cystal states Laschelle is still trying to exploit and make money off these babies by writing a book. I really worry about them after the novelty of their twinness wears off for Laschelle and she can’t get any more attention or money through them.

  11. Oscar Michelen

    Thank you Susan for the information. I know the Kehoes must be devastated by all of this. Maybe they should seek new counsel with experience in this area to see if anything further can be done.

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