Vague surrogacy laws can lead to heartache

In another example of why it is important to have an Agency guide your surrogacy, we bring to light these sad cases where the Intended Parents were not well informed about the nature of the surrogacy laws in the state in which they were matched. Surrogacy laws are a patchwork across the country, ranging from strong, well founded laws in states like Texas and Nevada, to other states where the process is assumed, like California, all the way to states where you are at the mercy of a judge to determine parentage, like Arizona and Tennessee. An experienced Agency could have prevented the heartache here by explaining to the Parents exactly what their rights and limitations were in terms of the laws of the state where their baby would be born.

Article from USA Today

NASHVILLE — A week after giving birth, a Tennessee woman who agreed to be a surrogate for an Italian couple changed her mind. She wanted to keep the baby girl.

After years of legal wrangling, the state Supreme Court earlier this month ruled partially in her favor, sending the case back to a Nashville juvenile judge to decide on custody of the girl.

The girl is now 3, lives in Italy, speaks no English and has been raised since infancy by the Italian couple after the surrogate’s legal fight to keep her was dismissed by lower courts.

It’s a wrenching custody battle that surrogacy law experts say might have been avoided if Tennessee laws didn’t lag woefully behind new reproductive technologies, including the common use of surrogates by couples experiencing fertility problems.

Tennessee’s surrogacy law “lacks a clear process for persons to create, carry out, and enforce traditional surrogacy agreements,” the Supreme Court noted in its opinion. That “leaves parties to surrogacy contracts and courts ill-equipped to deal with the complex questions that inevitably arise in this area of law.”

The lack of legal guidelines has led to heartbreak.

“Certainly, it’s complicated to try at this point to establish a visitation schedule if you have a child who doesn’t speak English, has never met the surrogate but does have a biological mother whose rights have never been terminated,” said Benjamin Papa, an attorney for the Italian couple, whose identities — like the surrogate’s — remain confidential in the court’s order.

“The battle has been very hard,” Papa said. “They went through the whole surrogacy process in good faith. From their perspective, the surrogate decided she wasn’t going to live up to the bargain at the last minute. They have been very frustrated with her trying to back out of the deal everyone agreed to.”

The case is one of two recent court decisions illuminating a void in state laws guiding surrogacy contracts.

Tennessee’s lack of legal guidelines extends to gestational surrogacy, a more common surrogacy arrangement. Unlike the case of the Italian couple, gestational surrogacy involves implanting a fertilized egg into a surrogate that has no biological relationship with the woman pregnant with the baby.

In one Rutherford County case, the surrogacy arrangement went smoothly. There was no conflict between the surrogate and the intended parents. And then the Tennessee Department of Health intervened.

The surrogate was implanted with an anonymously donated egg fertilized by the intended father’s sperm. When the couple went to court to establish parentage, just before the birth of their child, state attorneys argued against them, saying that the surrogate must be listed as the child’s mother on the birth certificate. The court sided with state health officials.

Tennessee is one of four states that require an intended mother who uses an egg donor to wait until after the child’s birth to become the legal parent. The mother has to adopt the child — a practice that also affects the surrogate, who remains “on the hook as the legal parent until that adoption proceeding is completed,” said Diane Hinson, a Fellow of the American Association of Assisted Reproductive Attorneys.

Julia Tate, an attorney in the Rutherford County case, said she intends to appeal the ruling by the Court of Appeals.

“There are women using donated eggs every day in Tennessee,” Tate said. “All these surrogates — they don’t want to be named as the mother of the child. All the intended parents want to be named as the parents. We’re out of step with the nation. Our department of health is out of step with the nation.”

Because of Tennessee’s vague laws, Tate said, parents have been unable to add their child to their health insurance plans and obtain Social Security cards. Also, they bear the added legal expense of going through a “stepparent adoption” to legalize the mother’s relationship with the child.

“After all the indignities (parents) have been through to have this child,” said Tate, pointing to years of unsuccessful fertility treatments and the process of finding a surrogate, “they have to go through the final indignity of having to have a stepparent adoption for their child.”

Wadhwani also writes for The Tennessean in Nashville.