San Francisco Family Law Blog

Buying babies, bit by bit
From The Economist

An international guide to test-tube reproduction and surrogacy

One of the tests of a liberal society is whether the state stays out of the bedroom—but more than 3m people alive now were not made in bedrooms. They came into being as a result of in vitro fertilisation (IVF) under the glare of laboratory lights, with the assistance of a team of doctors, nurses and technicians.

IVF was originally intended to allow heterosexual couples to bypass problems with fallopian tubes or sperm by introducing eggs and sperm to each other in a petri dish. But demand has mushroomed among those with other medical problems as well as the single and gay. They need people to supply them with sperm, eggs and sometimes wombs; and the services of clinics who put the lot together.

Since the manufacturing of anything which is regarded as God-given—or at least natural—touches a moral nerve, governments tend to want to regulate the business. And because attitudes to the family vary from country to country, regulations about baby-making do too. Discerning baby-shoppers therefore assemble inputs from around the world—sperm from Denmark, an egg from Russia, a surrogate mother from California—to ensure that biology, for them, need not mean destiny. Some even switch countries midway through treatment, starting in Britain, say, and travelling to Russia, Spain or America at a crucial stage in the proceedings.

Countries known to be permissive soon end up treating lots of foreign patients. Women from all over Europe travel to Denmark for donor insemination because it is well-regulated, quality-checked and guaranteed to be anonymous: more Swedish women conceive every year in Danish than in Swedish clinics. Women travel to Spain for egg donation, since Spanish women can be paid for their eggs. They travel to California from all over the world to sign surrogacy agreements, since there it is the commissioning, rather than the gestating, woman who is legally considered the “real” mother.

The turkey-baster was an icon of 1960s feminism. But do-it-yourself sperm donation has fallen out of favour in an era of AIDS and child-support payments. Nowadays those who need sperm get it frozen, so the donor can be tested six months later for HIV (the virus does not show up in tests until some time after it has been caught), and anonymous, so the donor can neither claim parental rights nor be burdened with parental responsibilities.

Cryos, a Danish sperm bank, is probably the world’s largest supplier of sperm. It sells to clinics in nearly 50 countries, has more than 200 donors on its books at any one time and distributes more than 10,000 units of semen each year, resulting in about 1,000 pregnancies. It cannot export to countries where anonymous donation is illegal, including Sweden, Norway, the Netherlands, Britain, Switzerland and Australia, or to Italy, where it is illegal to use donor sperm. Some clinics in these countries now treat patients at home and fly them to Denmark for insemination. In 2001 the company opened an American offshoot, Scandinavian Cryobank (slogan: “Congratulations! It’s a Viking”), which, like other American sperm banks, offers sperm direct to customers via an online catalogue. Its eye-catching offers include exclusive worldwide rights to a donor for $75,000.

A major competitor is California Cryobank. It pays donors $75 per specimen—with occasional gift vouchers and movie tickets thrown in. Customers pay $240-400 per specimen, depending on sperm count. Basic information about donors—height, weight, colouring, occupation—comes free, but further information must be paid for. A facial-features report, listing such attributes as “nostril flare” (narrow, average or large), costs $12; an audio interview is another $25. For $65 a customer can buy a package of baby photo, audio tape, full personal profile, psychological profile, essay, description of the clinic staff’s impression of him and facial-features report. She can hire a consultant to help her choose a donor, at $80 for 30 minutes. At a cost of thousands, she can store vials from a donor in order to be able to have more children by him in the future. The clinic will buy back unwanted vials for half their original price.

Donating eggs is considerably more taxing than donating sperm, as it means taking super-ovulation drugs for a fortnight or so and then undergoing a minor operation to harvest the eggs.

So where it is illegal to pay donors, eggs are scarce, and where it is legal, they are expensive.

In Britain egg donors can be paid only for travel expenses, so most donated eggs are from friends or family, or, until recently, other infertile women, who are permitted to barter half the eggs harvested during their own infertility treatment in return for a richer woman paying for treatment for both of them. This practice has now almost ceased—an unintended consequence of a legal change in May which gave children born of egg or sperm donation the right to be told the identity of the donor once they turned 18. Most potential egg-sharers have been deterred by the fear of remaining childless and later discovering that another woman has conceived a baby by an egg that was given away.

British women are instead looking abroad, to countries where egg donors can be paid. Many travel to Spain, where a sympathetic attitude to infertile women and a payment of £800 mean that donors are forthcoming. Spanish clinics advertise for fair-skinned and fair-haired donors, and run partnerships with clinics across Europe who treat women at home and fly them to Spain just for embryo transfer. One large London clinic says it sends a woman to Madrid every other week.

Strictly speaking, paying for donated eggs is illegal in America too, since it counts as buying a body part. But it is legal to compensate a donor for her time and effort, and this compensation can be very high. Some women donate via an egg broker. For this they are likely to be paid $5,000-7,500. Others reply directly to personal ads, which are commonplace in campus newspapers, and which can offer up to $100,000 to the right woman. The Stanford Daily has a “Donors Wanted” heading in its classified section; Jewish, Asian and East Indian women are in high demand, as are those who are tall, athletic and clever—with doctorates or SAT scores above 1,350 often specified.

Paying clever and beautiful American women for their eggs doesn’t make much sense, though—such fortunates can make money in other ways. So some American clinics have taken the obvious step of sourcing their eggs from poorer countries. GlobalART provides eggs from eastern European women to clinics in America and Israel. The sperm being used is frozen in America, flown out to Romania and the eggs are fertilised there. The resulting embryos are frozen and flown back to America, to be implanted in the host’s womb. The company charges $13,650 for all the eggs from a single super-ovulation cycle.

It is also possible to buy direct. Search online for “Russian egg donor” and you will find many aspiring sellers. Some pose holding babies, presumably to show they are fertile. Others, heavily made up and pouting, are clearly re-using portfolio photos taken for modelling agencies.

Give me a child

There’s nothing new about surrogacy: in the book of Genesis three women sent their husbands to their maidservants to remedy their own deficiency in producing sons. Presumably those servants were unenthusiastic about handing over their babies. But IVF has made it all easier. A woman who has functioning ovaries but a damaged, or no, womb can create embryos in vitro that are genetically her own. If she cannot produce eggs, she can use those from a donor rather than from the surrogate, meaning that the surrogate is carrying a child not related to her—a child she is less likely to want to keep.

Still, the relationship between intending parents and surrogate mother is unavoidably fraught. It lasts longer than the few weeks taken by egg donation, or the few minutes by sperm donation. And the intending parents will also want to monitor the surrogate’s behaviour. So there are significant barriers in the way of using poor women from abroad.

What’s more, in most countries the woman from whose body the baby exits is the default mother, no matter whose genetic material was used in the conception. The only safe option is to enter into a formal arrangement in one of the few jurisdictions where surrogacy is legal.

In some of these countries, although the practice is legal, the surrogate mother cannot be paid, so again there are problems of supply. In Britain, for example, paying surrogates is illegal, and an infertile couple cannot advertise to find one. If friends and family are unable to help, the couple must pay to join a surrogacy network and wait to see if they seem attractive enough to any of the dozen or so women in the country willing to carry someone else’s baby for nothing more than expenses and a warm glow. And even then, after the baby is born the surrogate can back out—even if the child is not genetically hers.

Some American states ban surrogacy outright. Some rely on case law. Only a few set out clearly who is the parent of a child born of a surrogate mother. California has long been a popular destination for those seeking surrogates: it has reasonably friendly case law, with the commissioning parents granted considerable rights (and responsibilities), and law firms specialising in contracts between intending parents and surrogates. But Illinois may well overtake it as the venue of choice: a 2005 law provides for intending parents to arrange sole custody of the child of a surrogate, even before the child is born. Still, surrogacy will only ever be an option for the rich: the surrogate mother will require a fee of around $20,000 and the total cost, with legal fees, egg donation and medical procedures, will leave little change from $100,000.

Despite its similarities with manufacturing, assisted reproduction is unlike most technologies in one way: as the science advances, the market may shrink. Most women in need of egg donation have left childbearing too late to use their own—but once eggs can be frozen routinely, young women will surely bank them so they can reproduce when it suits them, not when it suited our shorter-lived ancestors. Some women turn to surrogates after miscarrying repeatedly; again, in future science may enable them to carry their children themselves. But as long as there are people who cannot both conceive and gestate their own child, there will be donors and surrogates; and there will be customers, consumed with longing to be parents, willing to pay.

Posted by Tilden Moschetti at 4:32 PM | Permalink | Comments (1)

Two Mommies or Two Daddies Will Do Fine, Thanks
An advocate for gay families says James Dobson misuses science to discredit same-sex parenting
By JENNIFER CHRISLER, Time Magazine

The strategies of religious and political extremists like James Dobson of Focus on the Family have become more nuanced of late. They have adjusted their language so that it is less vitriolic. They now utilize terms and approaches that often have a scientific-sounding overlay and are designed to appear more reasonable than those of their earlier efforts. They use the language of "concern" instead of the language of direct condemnation. They have had to make these adjustments because — as the lives of gay people and their families have gained visibility — the previous methods of attack lost their effectiveness. Nevertheless, the science they wield, if not unsound, is misconstrued. Responding to the news of the pregnancy of Mary Cheney, the lesbian daughter of the Vice President, Dobson, writing in a viewpoint in TIME magazine, put to work the time-worn tools of lies and distortion to make his argument that lesbian and gay parents are not able to provide environments for their children comparable in quality to those created by heterosexual parents.

These are the facts. According to the 2000 census, the vast majority — more than 75% — of American children, are being raised in families that differ in structure from two married, heterosexual parents and their biological children. We are a nation of blended and multi-generational families, adoptive and foster families, and families headed by single parents, divorced parents, unmarried parents, same-sex couples and more. Despite Dobson's assertions to the contrary, there is no single "traditional" family structure in the United States.

Moreover, despite Dobson's attempt to blame this reality on "no-fault divorce," this is not a new development. Over time and across cultures, the definition of family and the arrangements in which children have been raised have varied tremendously. Dobson's idea that the nuclear family is "supported by more than 5,000 years of human experience" and constitutes "the foundation on which the well-being of future generations depends" is simply not historically accurate.

Within his commentary, Dobson directly attributes some of the points of his argument to prominent psychologist and social researcher Dr. Carol Gilligan. However, when asked about his use of her research, Dr. Gilligan stated emphatically that its inclusion constitutes "a complete distortion of my work" and went on to say that there is nothing in her research that would support Dobson's stated conclusions.

It is true that there is 30 years of research about families headed by lesbian and gay parents. However, Dobson claims that the resulting data shows that "children do best on every measure of well-being when raised by their married mother and father." To say that Dobson is misinformed here would be inaccurate. He is simply lying. The people who are misinformed by these untruths are the readers of his material and those who publish his work without appropriately verifying his assertions. The fact is that research findings on these issues overwhelmingly testify to the success of gay families as nurturing environments for children's growth and development.

In terms of specific examples, Dr. Nanette Gartrell, former Harvard Medical School faculty and current Associate Clinical Professor of Psychology at the University of California, San Francisco, has conducted research on lesbian-headed families since the early 1980s. Gartrell's findings have proven that "in social and psychological development, the children [of lesbian parents] were comparable to children raised in heterosexual families." In addition, Dr. Charlotte Patterson, Professor of Psychology as the University of Virginia and respected family and child researcher, has determined that "there is no evidence that the development of children with lesbian or gay parents is compromised in any significant respect relative to that among children of heterosexual parents in otherwise comparable circumstances."

In addition, professional organizations such as the American Academy of Pediatrics, the American Psychiatric Association and the National Association of Social Workers have all issued position statements supporting same-sex parents. The Child Welfare League of America says, "It should be recognized that sexual orientation and the capacity to nurture a child are separate issues." The American Psychological Association goes even further: "Not a single study has found children to be disadvantaged in any significant respect relative to children of heterosexual parents. Indeed, the evidence to date suggests that home environments provided by gay and lesbian parents are as likely as those provided by heterosexual parents to support and enable children's psycho-social growth. Gay and lesbian parents are as likely as heterosexual parents to provide healthy and supportive environments for their children."

The fundamental reality is that all parents, regardless of gender or sexual orientation, are linked in a very real way. We want our children to be safe, healthy and happy. When any of our families are politicized, it is an assault on our ability to protect ourselves, each other and our children. When people like Dobson profess "concern" for the welfare of children, while simultaneously attacking those very children's parents and family structures, their insincerity becomes evident. If their paramount focus is truly the health and well-being of children, then we invite Dobson and his colleagues to join our fight to ensure that all loving families are recognized, respected, protected and celebrated.

Posted by Tilden Moschetti at 11:20 AM | Permalink | Comments (0)

Surrogacy and the Single Dad
The hunt for a family can take some unexpected turns
By Sanjiv Bhattacharya

Time and again, on his morning commute, David found himself scowling about the night before--yet another dead-end date. There he was, a successful 39-year-old, with a flourishing ophthalmology business and a decent income. All he wanted was to fall in love and start a family--unlike so many men, he actually wanted to commit. But he never was lucky in love.

"I had a few relationships, but nothing ever lasted more than a year," David shrugs. "I don't know why. Maybe I'm too focused on my work. Maybe it's because I live in Flint, Michigan--I'm sure it's easier in New York. Also, you know, I started off looking for a Jewish girl. Out here, we call them JAPs: Jewish-American Princesses. I wasn't so picky after a while."

Every day, he would pass a billboard on his drive to work: "Dream of having a family but can't? Consider in-vitro fertilization." The face on the poster was a patient of his, a fellow physician who ran a local in-vitro fertilization clinic. So one morning, after "the date that broke the camel's back," he decided to pay him a visit.

"I asked him whether the chances of birth defects were greater with IVF. I honestly didn't know. But he said, 'no'. And that got me thinking--I'm not going to wait for a wife, I'm going to do this myself."

That was in 2002. Now he is the father of twin boys, 15 months old--Philip and Benjamin.

David--who wants to conceal his surname--is one of a small but growing minority of single men who are choosing to bypass relationships altogether and pursue fatherhood through surrogacy. Not traditional surrogacy but 'host' or 'gestational' surrogacy--there's a big difference. While a traditional surrogate becomes pregnant by artificial insemination--her own eggs are fertilized so she is genetically the child's mother--a host surrogacy is more complex. The prospective father first buys eggs from a donor--they can range from $2,000 to $100,000 a batch, depending on the donor's looks, brains, health and so on. He has them fertilized in-vitro with his own sperm or that of another cherry-picked donor--IVF costs up to $23,000. And then the embryos are implanted in the uterus of a surrogate who brings the baby to term for about $25,000. Not to mention legal fees.

Though traditional surrogacy is considerably cheaper--in addition to the surrogate's fees, artificial insemination can cost as little as $600--most prospective parents opt for host surrogacy because the surrogate, lacking a genetic bond, is far less likely to become attached to the baby. And while there are no hard numbers--surrogacy is a largely unregulated industry--anecdotal evidence indicates that host surrogacy is a booming business. Where it was once the preserve of infertile straight couples, now demand has extended to gay couples and singles (for whom traditional procreation is not an option) and a handful of perfectly fertile, straight men like David (for whom it is).

No doubt there are ethical questions raised by this phenomenon, in which the rich hand-pick their children's genes for brains, beauty, athleticism and longevity, and then lease out the uterus of a lower income woman to carry the baby.

"I worry that it becomes just another consumer choice," says Professor Mary Shanley of Vassar College, New York, the author of Making Babies, Making Families. "There are alternatives for people who wish to become parents, such as adoption. Why is the genetic factor so important here? By choosing the characteristics you want your child to have, you misunderstand the attitude that you need to be a good parent, which is ultimately about acceptance."

Shanley is encouraged, however, that men should be actively seeking a parenting role--a welcome change in traditional gender roles. But the question remains--why are eligible, wealthy, straight men, who don't have the urgency of a biological clock, nevertheless opting to have children without women?

"Believe me, it's not because it's easy," says David. Unassuming and soft-spoken, he seems an unlikely candidate for such a bold step. But behind his modest demeanour lies a grim determination. "I had to try five times over 3 years before my surrogate got pregnant. I must have spent something like $300,000. And I'm not what you call rich--at one point, I maxed out all three of my credit cards."

The first time around, his greatest challenge was finding an egg donor. Having contacted several agencies and browsed the profiles online, he found Rachel through an agency called Fertility Alternatives in Southern California.

"She was a college student, about 20," says David. "Dark hair, dark eyes, very pretty. She had a healthy family history. I talked to her on the phone and she seemed nice."

But it didn't work--the surrogate didn't get pregnant. So he tried again, keeping Rachel but changing the surrogate. Still no joy.

"It was very stressful," he says. "But every time it didn't work, I just grew more determined. So the third time I changed egg donor and doctor, but I kept the same surrogate. And the fourth time I changed the egg donor again. Then the agency told me there were studies that showed that where you had Caucasian sperm and eggs, the best surrogates were Latina or African-American women."

So on his fifth attempt, David finally found his winning combination. The egg donor was a former Swedish model living in Beverly Hills--a tall, well-educated blonde who had three grandparents living in their 90s. And his surrogate was Lilia Chavez, a 28-year-old mother of three from Riverside, California.

"Actually, I had two two surrogates at the same time," he says, "Sheila and Lilia. I was so exasperated I just used a scattershot approach. When I got the call from my lawyer, I was playing golf in Florida. He said, both surrogates were carrying twins, so for a few days I thought I'd have four children. But Sheila's embryos didn't take."

Eight weeks later, he was at a hospital in Riverside, California, by Lilia's bedside--it was the first time they had met.

"We were watching the sonogram," he said. "And just to see those two babies, their hearts beating, it really affected me. I started crying. I felt like, at last, it's going to happen." It's no accident that David went to California--the Golden State is something of a world capital for surrogacy.

"Our laws are more liberal," says Susan Jones, who runs Surrogate Parenting Consultants, the agency that put David and Lilia together. "In California, you needn't be a couple to use a surrogate. Gay couples are fine, so are single parents. They'll even issue a birth certificate with only the father's name on it--not the surrogate or the egg donor.

"Parenthood is decided by a surrogacy contract out here," she continues.

"In one case, a couple used an egg donor and a sperm donor, so the child wasn't genetically related to either the surrogate or the intended parents. Then, during the pregnancy, they filed for divorce and the father tried to get out of paying child support--'it's not my baby.' But the Supreme Court upheld the contract. He was the intended parent, so he had to pay."

It's quite a different story in the UK, as Ian Mucklejohn well knows. The first-ever Englishman to become a single father through surrogacy, Mucklejohn was forced to leave England for Los Angeles to find himself a surrogate. Now at 59, he is the father of three fraternal twins, Piers, Lars and Ian, all approaching 6 years old--his remarkable story is told in the book And Then There Were Three.

"For a start, only couples are allowed in England," he says. "Surrogacy's illegal for single parents. And it doesn't matter what contracts you've got signed, the surrogate mother can always claim the baby as her own. Under English law, the parent is defined as the person out of whom the baby came, whether they're genetically related or not. And if the woman is married, it is assumed that her husband is the father. So my surrogate, Tina, had to divorce her husband while she was pregnant with my boys. Not that she minded--she was quite relieved actually!" (Tina's marriage had long ended in any meaningful sense).

For Mucklejohn, the challenge wasn't the pregnancy--he was lucky the first time around--but bringing his babies back to England.

"In order to get my children's nationality I had to prove by DNA that I was the father," he says. "I think that was pretty groundbreaking. Surely it's time that English law embraced DNA testing? If paternity can be proved, it should be proved."

Like David, Mucklejohn is a wealthy, self-made businessman with a long yearning for family. Though a much more forthright, emphatic personality, he shares that sense of paternal destiny, almost--he'd always seen himself as a father, life had simply dealt him an unusual hand. He was single not because of a succession of dismal dates, but because he scarcely dated at all.

"I was living the life of a 'carer,'" he says. "My father's mental state had totally deteriorated. He needed around-the-clock care. And then I had my business to run [he operates residential English Language courses for foreign children]. I just had no social life whatsoever. And I was in my fifties--I couldn't afford to hang around."

David, being 10 years his junior, was less motivated by a ticking clock. But like Ian, and so many other men who pursue surrogacy in their middle age, he worked long, antisocial hours--hardly conducive to finding a life partner, but perfect for bearing the costs of future surrogacy. He has always wanted children--at his practice, he's the one who treats the kids, he believes he has a way with them.

"I considered moving into pediatrics," he says. And just as Ian lost his father to dementia before he took the plunge into fatherhood himself, David too experienced a similar loss. His father died of a malignant tumour three years earlier.

"It scared me," he said. "I realized that you have one life, one chance, and you've just got to take it."

Both men freely admit that their decisions to go it alone were partly driven by a fear of divorce. "Don't get me wrong, I always wanted a wife and I still do," says David. "But half of all marriages end in divorce and the law heavily favors women when it comes to custody. I see my friends all depressed about custody battles with their exes. That was a real red flag for me. I couldn't imagine having my children taken from me. This way, that can never happen."

Inevitably, the likes of David and Ian have met with opposition. In America, all the men I approached for this article feared a backlash from Christian conservatives. Sometimes, even surrogates will refuse to work with them.

"I've had surrogates tell me, 'I'd work with a single mother before a single guy because you don't know if he's a child abuser or something,'" says Susan Jones.

And the tabloid media hasn't always been kind. Certainly, they have put Ian Mucklejohn on the defensive, quick to argue that older parents are better for children (more experience), and that his children have plenty of female influences in their lives.

"One [woman] accused me of creating disabled children," he says, bitterly. "Just because I had deprived them the interplay between mothers and fathers who don't always agree. I made the point that my children hadn't heard any arguments."

But perhaps the reactionary responses are fading, at least among surrogate mothers. As more single mothers become surrogate moms, they are less quick to doubt the motives of a single parent. And while five years ago, many agencies didn't work with single men at all, now some actually prefer it. Lilia Chavez has only ever worked with single men. Though David was her first experience as a surrogate, she's now hoping to carry children for Mike, another single, straight man in his 40s.

"My husband was a single father before we got married and I saw what a good parent he is," she says. "Men are not as emotional. You don't get all the drama. I think they're more realistic, so in a way, they're better equipped to be parents."

Nevertheless, there were tensions between her and David. Though Lilia wouldn't talk about it, David hints at a conflict of class--"here I am with all this money to pay for this," he says, "and she's doing it for the money. It wasn't always smooth. We just come from different backgrounds."

Certainly David's background afforded him the means to attempt surrogacy five times--though it plunged him into debt--and he currently has a full-time nanny. But perhaps more importantly, he has the broad support of his extended family--his mother and two brothers, all of whom live within minutes of each other.

"When I started taking this route, my mother thought I was risking my future," he says. "She said, 'What if you end up with a monster?' Now she couldn't be happier."

Mucklejohn, on the other hand, is very much on his own. He once had a nanny but "the kids didn't ask about her when she went to hospital, so I took that as a sign to step in. So now, Daddy does everything. It's tough, managing it all. I can't afford to fall ill, as you can imagine."

Nevertheless, Mucklejohn has a confident, breezy way about him. When I ask about perhaps the trickiest issue of all--what to tell the children about "mummy"--it seems he has already taken care of it. With the help of the BBC, he tracked down the egg donor, Melissa, and arranged a meeting with the children. He did the same with Tina, the surrogate.

"The boys know they have two mummy's and they're both in America and they're happy with it," he says. "It doesn't come up." Job done.

This is, in fact, very rare, in the world of surrogacy. Most egg donation is entirely anonymous. As a result, men have spun elaborate lies about these phantom mothers, particularly those who travel to America from abroad.

"It's a problem, I think," says Professor Shanley. "I'm all for collaborative procreation but the child, I believe, has a right to know who their genetic forebears are."

Certainly, David hasn't decided yet what he's going to do. "I think honesty's always the best policy, but still, how do you explain this to a child?" he says anxiously. "I might get a consultation with a child psychiatrist. Hopefully they won't grow up and say, 'how could you bring us into the world without a mother, how could you do such a cruel thing?"

Like Mucklejohn, however, David just bubbles over with pride in his children. Both men are devoted fathers and have a strong sense of being trailblazers, determined to raise exemplary kids to defy any critics. And as for what the moral of their stories might be, they are unanimous--they are beacons of hope for childless men everywhere.

"I think the lesson of all this is that life is wonderful," says David. "Just look how far we've come in this society that this is even possible."

"Yes, and also how much easier it is to meet women when you already have children," says Mucklejohn. "I'm not joking. I've had a number of women who've expressed the wish to meet me. Maybe it's easier to do it backwards!"

Posted by Tilden Moschetti at 11:44 AM | Permalink | Comments (0)