At home in Lisbon, Portugal, a gay couple invited friends to a birthday celebration, and at the end of the evening shared a surprise: an ultrasound image of their baby, moving around in the belly of a woman in Pennsylvania being paid to carry their child.
“Everyone was shocked, and asked everything about how we do this,” said Paulo, who spoke on condition that neither his last name nor that of his husband, João, be used since what they were doing is a crime in Portugal.
While babies through surrogacy have become increasingly common in the United States, with celebrities such as Elton John, Sarah Jessica Parker and Jimmy Fallon openly discussing how they started a family, the situation is different in Portugal — as it is in most of the world, where hiring a woman to carry a child is forbidden. And as Paulo and João have discovered, even bringing home a baby born abroad through surrogacy can be complicated.
In an era of globalization, the market for children crosses national borders; witness the longtime flow of Americans who have gone overseas to adopt babies from South Korea, China, Russia and Guatemala.
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Other than the United States, only a few countries — among them India, Thailand, Ukraine and Mexico — allow paid surrogacy. As a result, there is an increasing flow in the opposite direction, with the United States drawing affluent couples from Europe, Asia and Australia.
Many large surrogacy agencies in the United States say international clients — gay, straight, married or single — provide the bulk of their business.
The traffic highlights a divide between the United States and much of the world over fundamental questions about what constitutes a family, who is considered a legal parent, who is eligible for citizenship, and whether paid childbirth is a service or exploitation.
In many nations, a situation that splits motherhood between the biological mother and a surrogate carrier is widely believed to be against the child’s best interests. And even more so when three women are involved: the genetic mother, whose egg is used; the mother who carries the baby; and the one who commissioned and will raise the child.
Many countries forbid advertising foreign or domestic surrogacy services and allow only what is known as altruistic surrogacy, in which the woman carrying the baby receives payment only for her expenses. Those countries abhor what they call the commercialization of baby making and view commercial surrogacy as inherently exploitive of poor women, noting that affluent women generally do not rent out their wombs.
But while many states, including New York, ban surrogacy, others, like California, welcome it as a legitimate business. Washington state allows uncompensated surrogacy agreements.
Together, domestic and international couples will have more than 2,000 babies through gestational surrogacy in the U.S. this year, almost three times as many as a decade ago. Ads galore seek egg donors, would-be parents, would-be surrogates. Many surrogates and intended parents find each other on the Internet and make their arrangements independently, sometimes without a lawyer or a formal contract.
The agencies that match intended parents and surrogates are unregulated, creating a marketplace where vulnerable clients yearning for a baby can be preyed upon by the unscrupulous or incompetent. Some agencies pop up briefly, then disappear. Others have taken money that was supposed to be in escrow for the surrogate, or failed to pay the fees the money was to cover.
Surrogacy began in the U.S. more than 30 years ago, soon after the first baby was born through in vitro fertilization in England. At the time, most surrogates were also the genetic mothers, becoming pregnant through artificial insemination with the sperm of the intended father.
But that changed after the Baby M case in 1986, in which the surrogate, Mary Beth Whitehead, refused to give the baby to the biological father and his wife.
In the wake of the spectacle of two families fighting over a baby who belonged to both of them, traditional surrogacy gave way to gestational surrogacy, in which an embryo is created in the laboratory — sometimes using eggs and sperm from the parents, sometimes from donors — and transferred to a surrogate who has no genetic link to the baby.
But thorny questions remain: How much extra will the surrogate be paid for a cesarean section, multiple births — or loss of her uterus? What if the intended parents die during the pregnancy? How long will the surrogate abstain from sex? If she needs bed rest, how much will the intended parents pay to replace her paycheck, and cover child care and housekeeping?
“The gestational carrier has to agree to follow medical advice, but there has to be some level of trust,” said Andrew Vorzimer, a Los Angeles surrogacy lawyer who advises on many arrangements that have gone awry. “Once everyone goes home and the doors are closed, there’s no way to really monitor what’s going on.”
Since the Baby M case, the common wisdom has been that the main risk for parents is the surrogate’s changing her mind. But Vorzimer, who has tracked problem cases over the years, said it was the reverse: Trouble most often starts with the intended parents. One intended mother decided, well into the pregnancy, that she could not raise a child that was not genetically hers. Another couple, after a divorce, offered the surrogate mother money to have an abortion.
Overall, Vorzimer said, there have been 81 cases of intended parents who changed their minds and 35 in which the surrogate did, 24 of them traditional surrogates who both provided the egg and carried the baby.
Surrogacy remains controversial, even in the U.S., despite the rapid proliferation of clinics, doctors and agencies. When all goes well, supporters say, the arrival of a baby to parents with no other path to a biological child is an unparalleled joy.
Opponents tend to focus on the cases in which the surrogate suffers health problems or is abandoned by the intended parents, or in which the fetus has serious defects.
Abortion politics hang heavily over the issue: Often, surrogacy involves twin or triplet pregnancies, with the possibility of selective reduction.
Critics sometimes draw an analogy to prostitution, another subject that raises debate over whether making money off a woman’s body represents empowerment or exploitation.
Tracking the costs
The restrictions in many countries have been a boost for U.S. surrogacy. For overseas couples, the big draw is the knowledge that many states have sophisticated fertility clinics, experienced lawyers, a large pool of egg donors and surrogates, and, especially, established legal precedent.
“We chose the United States because of the certainty of the legal process,” said Paulo, an engineer and scrub nurse. “Surrogacy is very secretive in Portugal. People don’t talk about surrogacy, and it’s hard to get any information. In the United States it is all clear.”
But it is not cheap. International would-be parents often pay $150,000 or more, an amount that rises rapidly for those who do not get a viable pregnancy on their first try. Prices vary by region, but surrogates usually receive $20,000 to $30,000, egg donors $5,000 to $10,000 (more for the Ivy League student-athlete, or model), the fertility clinic and doctor $30,000, the surrogacy agency $20,000 and the lawyers $10,000. In addition, the intended parents pay for insurance, fertility medication and incidentals, such as the surrogate’s travel and maternity clothes.
Because surrogacy is so expensive in the U.S., many couples travel to India, Thailand or Mexico, where the total process costs half or less. But complications have arisen — as in the case of a couple stuck in India for six years, trying to take home a baby boy, whom genetic testing had found not to be related to them, apparently because of a mix-up with the sperm donation.
Four years ago, according to Stuart Bell, chief executive of Growing Generations, a Los Angeles surrogacy agency, about 20 percent of its clients came from overseas, but now international clients make up more than half. Other agencies report the same trend.
“Anyone who can afford it chooses the United States,” said Lesa Slaughter, a fertility lawyer in Los Angeles.
Some lawyers tell of ethical problems with intended parents from abroad. Melissa Brisman, a New Jersey lawyer who handled Paulo and João’s surrogacy, had a prospective client from China who wanted to use five simultaneous gestational surrogates. She turned him down.
Vorzimer, in California, had an international client who wanted six embryos implanted.
“He wanted to keep two babies, and put the rest up for adoption,” Vorzimer said. “I said: ‘What, like the pick of the litter?’ and he said, ‘That’s right.’ I told him I wouldn’t work with him.”
Probably the most agonizing cases, though, are those in which the intended parents and the surrogate do not agree on what to do about a fetus with severe defects.
Heather Rice, an Arizona mother of three, said her first surrogacy was “an experience so great I knew I wanted to do it again.”
She had a different experience the second time, when, after two miscarriages, a routine ultrasound showed that the 21-week-old fetus had a cleft in his brain.
“(The) Mom walked out of the room, left me lying there, and I thought: ‘This is not my baby. I should not be dealing with this by myself,’ ” she said. “But I told Mom, ‘I’ll respect your decision, whatever you decide, because this is your baby.’ A couple days later, they called and told me they didn’t want their little boy so I should get an abortion.”
With only days left before an abortion would become illegal under Arizona law, Rice found herself unwilling to kill the fetus.
“I think my motherly instincts kicked in when they didn’t want him,” she said. “I told them I just couldn’t do it. (The) Dad told me God was going to punish me for disobeying them.”
Rice found a woman whose child had the same condition who wanted the baby. And on the 28-week ultrasound, the brain looked somewhat better. When Rice called and told the intended parents that someone would take the baby, they said they had decided they wanted him after all. At the delivery, though, the mother did not show up.
“When I called, she said Dad had been in the waiting room all night,” Rice said. “I was crying. I said he has to come in; he’s the father; he should be here. He came in, he cut the cord. He took the baby. And that’s the last I ever heard from them.”
Rice said she had no idea how the baby was doing, or even whether his biological parents had kept him.
“I found them on Facebook, and there’s no trace of him, so I think they gave him up for adoption,” she said. “I don’t know where he is, and it kills me every day.”
Undeterred by law
For the Portuguese couple, the journey began when Paulo saw a television report about surrogacy, showing a gay couple who were unidentifiable in the shadows.
The next day, he went to the television studio to ask how to find the two men. The producer would not share their names, but on re-watching, Paulo and João saw the name of the Connecticut fertility clinic.
Two years later, they were in a hotel in Central Pennsylvania for the birth of their son, Diogo. His U.S. passport had arrived. The bittersweet farewell dinner with the surrogate and her family was over, and the flight home was booked for the next day.
“It’s like a miracle,” said Paulo. “I cried when I saw the flight booking on the computer. I said: ‘Look, João. It’s not us two anymore. We are three.’ ”
Getting to three was long, stressful and expensive, with problems at almost every turn — and one large hurdle remaining, as they apply for Diogo’s Portuguese citizenship.
João and Paulo, like most international couples using an American surrogate, want their baby to be a citizen of their home country. But many Chinese parents take a different tack, keeping the American citizenship automatically conferred on every baby born here. Some hope the baby will attend a U.S. university or help the family to live and work in the U.S.
But for Chinese clients, too, overseas surrogacy carries a complication, making it difficult for the baby to get a hukou, or household registration card, granting access to local schools and hospitals.
There is another issue in China: restrictions on the number of children per family. Some Chinese couples, particularly older couples, turn to American surrogacy for a second child, whose U.S. citizenship might clear the family from scrutiny.
But most surrogacy agencies say they will work only with intended parents who cannot carry their own baby, as recommended by the guidelines of the American Society for Reproductive Medicine. So Chinese clients who seek an overseas surrogate to get around the one-child rule create a dilemma.
“We usually only take clients who have a medical need for surrogacy, but in December, we decided to bend that rule, for Chinese people, government officials, who would be in trouble if they break the one-child rule,” said Karen Synesiou, chief executive of the Center for Surrogate Parenting, in Encino, Calif. “We’re thinking of it as political surrogacy.”
Then, too, agencies and lawyers say, there has been a recent uptick in the number of clients seeking “social surrogacy” — that is, having someone else carry their baby so as not to damage their career, or their figure. Not all agencies follow the guidelines.
“We don’t feel like we should be the gatekeepers when it comes to that,” said Saira Jhutty, chief executive of Conceptual Options, a California agency.
Final hurdles at home
For those from abroad, getting a U.S.-born baby home can involve tangled immigration problems. Some countries require a new birth certificate, a parental order or an adoption. Some will not accept a U.S. birth certificate with two fathers listed as the parents. Occasionally, a baby can be denied entry into the parents’ home country.
International law is catching up with social practice: On June 26, in a case involving two sets of children born to U.S. surrogates, the European Court of Human Rights ruled that France had violated the European Convention on Human Rights, and undermined the children’s identity, by refusing to recognize their biological father as their legal parent, easing the way to French citizenship.
The decision will most likely smooth the path for Paulo, João and their son, who entered Portugal on his U.S. passport.
So far, efforts to register Diogo in Portugal have failed, because the Portuguese process requires that a mother be named. Meanwhile, they have been advised to seek a residence card for him.
“They told us to wait three months for an answer,” Paulo said in a recent email.
“We still do not know how this will end.”