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By Leonie Helm
Life Reporter
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Surrogacy is a widely accepted way for certain couples to have a child when one or both of them cannot conceive or carry the child themselves.
In a Reddit post written from a now deleted account, a man, 33 explains that he and his husband, 37, both based in California, are "in a difficult situation" with their surrogate. The baby is biologically related to both the surrogate and the OP's husband, therefore it is a traditional surrogacy, rather than a gestational surrogacy.
Gestational is the more common form of surrogacy, whereby an embryo is fertilized in a lab then implanted in to the surrogate's uterus, so the surrogate has no biological claim to the baby. Traditional surrogacy is less common as the embryo belongs, in part, to the surrogate, despite binding legal documents relinquishing any rights.
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"We had a legal agreement in place, and Maria was compensated generously for her part in carrying our baby," he writes, "Everything was going smoothly, and we were excited for our child's arrival."
However, in the eighth month of her pregnancy, the surrogate, named Maria in the Reddit post, "dropped a bombshell."
"She declared that she no longer wanted to go through with the surrogacy and expressed her desire to keep the child," he revealed.
He added that he reminded her that she had signed the legal documents, and that the baby was "unequivocally ours."
"She began pleading with me, but I stood my ground, asserting that this child was my son and not hers," he added, "She tried to bargain, saying she no longer wanted the money, but I firmly rejected her request, emphasizing that no one had coerced her into signing those papers. Whether she liked it or not, the baby was ours."
With gestational surrogacy a contract between all parties will be recognized by Californian courts, and it is almost impossible for the surrogate to keep the baby as she has no biological connection. However a traditional surrogacy where the child is biologically the surrogate's is more complicated.
"Some courts in California may approve traditional surrogacy parentage actions with the consent and cooperation of the parties," Ralph Tsong, lawyer and ART Fellow at the Academy of Adoption & Assisted Reproduction Attorneys and Academy of California Adoption and ART Lawyers (ACAL), told Newsweek.
"However one California court of appeal declined to enforce a traditional surrogacy case in 1994 and found it was incompatible with adoption and parentage laws already on the books. As a Washington state barred attorney I would advise the parties to draft the contract under Washington law where genetic (traditional) surrogacy is recognized and find a way to have WA law apply such as having a medical or mental health consultation take place in Washington state."
Unlike with a gestational surrogacy, if a traditional surrogate backs out of an agreement in California, "it's likely the contract will not be enforceable and the surrogate can withdraw. If the surrogate withdraws, it is the sole parent until the genetic father brings a paternity action," said Tsong, "In WA state, the surrogate may terminate the contract anytime but no later than 48 hours after the birth."
According to Tsong, in gestational cases it is extremely rare that the surrogate changes her mind, as the baby is not hers. "It's exceptionally rare. We have not seen it happen once in over 600 surrogacy matches," he said.
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"I'm not aware of the rates in traditional surrogacy but there are some high profile cases" he added, "In the famous case of Baby M in 1988, the traditional surrogate sparked a legal battle when she became attached to the baby she delivered in a traditional surrogacy arrangement. Three states involved in the saga, Michigan, New York and New Jersey, passed broad anti-surrogacy statutes in the aftermath and it took decades before New York and New Jersey would legalize surrogacy."
The most important thing a couple should do before engaging in a traditional surrogacy is consult with an attorney experienced in third-party reproduction law before becoming too invested in a match that is legally risky.
"They should be aware of the warning of the California Court of Appeal in the 1994 In Re Marriage of Moschetta case:
"'Infertile couples who can afford the high-tech solution of in vitro fertilization and embryo implantation in another woman's womb can be reasonably assured of being judged the legal parents of the child, even if the surrogate reneges on her agreement. Couples who cannot afford in vitro fertilization and embryo implantation, or who resort to traditional surrogacy because the female does not have eggs suitable for in vitro fertilization, have no assurance their intentions will be honored in a court of law. For them and the child, biology is destiny'."
"This whole post is a huge mess I see smh. Dude is gonna have problems," sympathized one user on Reddit. "I feel like that shouldn't even be called "Surrogacy" then, it should be adoption from birth," argued another.
Newsweek was unable to verify the details of the case.
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