This case represents yet another example of the risks that exist when you cut corners in a surrogacy arrangement. Why anyone would proceed with a surrogacy arrangement with strangers they have just met who have not undergone any medical or psychological screening is beyond me. Throw into the mix the failure to consult with an attorney and draft a contract and you have a recipe for disaster and it shouldn’t surprise anyone that the Intended Parents walked away 7 months into the pregnancy.
I also have a major nit with Ms. Levitan’s contention that the greatest risk in this industry that the surrogate will not relinquish custody of the Intended Parent’s child. This is an oft-repeated myth and could not be further from the truth. Based upon anecdotal statistics our office has been compiling for 18 years, the greatest risk in a surrogacy arrangment is that the Intended Parents will abandon their pregnant surrogate and their own children. Since 1979, there have been more than 44,000 surrogate deliveries in the United States. There have only been 33 reported instances of surrogates attempting to change their mind (with most of those involving traditional surrogacy arrangments). Shockingly, there have been 77 cases in which Intended Parents have sought to walk away from their own children and surrogate during the pregnancy.
So while these numbers reflect a very tiny fraction of cases that have problems, it is inaccurate to suggest that the surrogate is more likely to keep the child than the Intended Parents are to abandon their child. With respect to my own practice, I have participated in more than 8,000 ART arrangements (representing Intended Parents) over the past 18 years. While I have never had a surrogate change her mind on one of my clients, four of my clients have attempted to walk away from their pregnant surrogate — with 3 of them actually following through on their threat. Needless to say, those cases represented the most difficult situations I have ever had to handle as an attorney in this field.
More on the Canadian surrogate who found herself abandoned:
A Bathurst mother’s experience with an informal surrogacy arrangement is troubling, according to a lawyer who specializes in reproductive law. Cathleen Hachey, 20, agreed to have a child for a British couple whom she had met online. She became pregnant with twins, but the couple split up and told her 27 weeks into her pregnancy that they no longer wanted the babies.
Sherry Levitan, a Toronto lawyer who specializes in reproductive law, said no one should become a surrogate mother without a pre-conception contract. “I think that she was one of those lovely Maritime women who are simply too trusting,” Levitan said. “I think she should have, and I hope that she will in the future, take care of herself and make sure that she is protected. It would have been relatively simple to protect her in this situation.”
Cathleen Hachey, 20, was told 27 weeks into a pregnancy that a British couple were pulling out of a surrogacy arrangement. Cathleen Hachey, 20, was told 27 weeks into a pregnancy that a British couple were pulling out of a surrogacy arrangement. Levitan said it is illegal to pay someone in Canada to be a surrogate mother, but there are no limits on the expenses that can be covered for the mother. The twin infants are now with a family in Nova Scotia, which intends on adopting them.
Hachey, who also has two of her own children, became interested in being a surrogate mother and started investigating the process online and eventually came into contact with the British couple. When a surrogate parent backed out on that couple, they came to Canada and visited Hachey in the northern New Brunswick city. While in Bathurst, the couple and Hachey decided to try and get pregnant. The conception was not done in a clinic, but at home with a syringe and semen from a cup.
Hachey said the surrogacy deal was not done for money, and she received only a regular $200 allowance for food. However, Levitan said there are “almost always problems when people go through the independent route.” Instead, the lawyer advised other women considering surrogacy to consult a physician and a lawyer so it is guaranteed that they will be taken care of during the process.
Levitan said that it is very rare for the parents waiting for a child to back out of an agreement. “I’ve been practising in this field for 20 years now and this is the first time that I’ve ever heard of intended parents not coming to collect their children,” she said. “In fact, it is the opposite that we worry about. We worry that the surrogate is not being willing to give up custody of the child. Intended parents in the infertility sector are the most dedicated and motivated group that you can imagine.”
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