By Mary Pickels, Sunday Tribune-Review, PA, November 7, 2004

Eighteen years ago, a woman who agreed to conceive, carry and then turn over a child to a man and his infertile wife had a change of heart. Thus, the nation was introduced to Baby M. and surrogacy came out of the closet.

After agreeing to accept $10,000 for “compensation for services and expenses,” Marybeth Whitehead, of New Jersey, was artificially inseminated with William Stern’s sperm. Nine months later she delivered a baby girl, renounced payment and tried to keep the child.

The lengthy court battle was decided in 1988, when the Supreme Court of New Jersey invalidated the parties’ surrogacy contract. Stern was awarded custody, with Whitehead given weekly visitation rights.

The decision prohibited additional surrogacy arrangements in New Jersey, unless the surrogate mother volunteered to act without payment and was given the right to change her mind later.

Since then, surrogacy has become a more commonly accepted method of achieving parenthood.

Celebrities, including former “Good Morning America” host Joan Lunden and former “Frazier” actors Kelsey Grammer and Peri Gilpin, all have publicly acknowledged using surrogates.

Surrogacy laws vary state by state. In Pennsylvania, no law regulates surrogacy.

Couples become parents
In western Pennsylvania, surrogacy is not a common practice at hospitals offering other reproductive services.

Dr. Anthony N. Wakim, board certified in obstetrics, gynecology and reproductive endocrinology and infertility, is medical director of assisted reproductive technology at Pittsburgh’s Magee-Womens Hospital in Oakland.

The hospital lists surrogacy among its services, but Wakim prefers the term “gestational carriers.” As opposed to “traditional” surrogacy, in which the surrogate donates her own egg, gestational carriers are genetically unrelated to the babies they carry. The embryos are formed from the eggs and sperm of the biological parents.

The hospital does not offer traditional surrogacy because of the potential for legal problems.

Gestational surrogacy, Wakim said, is “less of an entangled issue.”

The practice is only a few years old at Magee, he said, and is usually done for women who have fertility problems.

Although the practice is growing, Wakim said, “It’s obviously not for everybody.”

Typically, he said, the intended mother should be under age 40 and have a good reserve of eggs.

The age of the surrogate is important as well.

“The younger they are, the more children thy have had, the better off they are,” Wakim said. “Older women tend to have more (medical) problems – high blood pressure, diabetes.”

The hospital does not recruit surrogates; many couples, he said, come in with a potential surrogate, often a family member or friend.

A great deal of counseling is provided by participants, he said. After conception, the carriers then visit the obstetrician of their (or the parents’) choice.

The resulting pregnancies tend to be successful, Wakim said.

He estimated the hospital performs about 10 such procedures a year.

“We get patients from all over Pennsylvania, West Virginia, Ohio, occasionally overseas,” he said.

Wakim views the option as simply another way to help a couple have a family.

“It would be a tragedy if these couples are not helped,” he said. “The ingredients are there.”

Legal accountability
Perhaps the most watched surrogacy case at present involves Erie County resident Danielle Bimber and Ohio resident James Flynn. Bimber, the mother of three children with her husband, agreed to be a surrogate for Flynn and his fiancée, Eileen Donich. Flynn is the biological father of three boys who will turn 1 year old Nov. 19, conceived with an anonymous egg donor and carried by Bimber.

Bimber said Flynn and Donich failed to claim the boys after their birth. She took them home from the hospital and is seeking custody.

Erie County Judge Shad Connelly awarded her temporary custody in April. Flynn and Donich have visitation privileges.

Flynn has characterized Bimber as someone who “was paid for a service.”

Connelly has asked the Legislature to take a legal stand on surrogate contracts and how enforceable they should be.

Pittsburgh attorney Bruce Wilder believes that if Pennsylvania had its own model of the Uniform Parentage Act, drafted by the National Conference of Commissioners on Uniform State Laws, “This case probably never would have happened.”

The UPA was adopted by 19 states in 1973, laying out rules for the presumption of parentage. The original law did not address certain issues, including divorce and infertility.

A newer version addresses the “surrogate mother,” and suggests that a gestational agreement be reviewed by a court, just as an adoption agreement is.

Wilder practices health law with the firm Wilder & Mahood. He also serves on the American Bar Association’s law of genetics and reproductive technology committee. He has not dealt with any surrogacy cases in this region.

After Baby M, he said, a few states adopted the Uniform Status of Children of Assisted Conception Act. It includes court approval of surrogacy agreements.

“It’s a pretty good plan as to how to handle these cases,” Wilder said. “The process of going to court puts them (intended parents) on the record as legally bound to be parents of this child.”

Wilder has no problem with the concept of surrogacy in general. He does think, however, that forms of assisted reproduction and clinics should be regulated.

“My own personal bias is, if I wanted to raise a child and I could not have one with my own genes, I would adopt one,” Wilder said. “But some people want a child with their own genes…I thin it (surrogacy) is a reasonable thing to do, make some embryos and find a surrogate. I think it’s something that should be permitted.”

Baby on board
Attorney Melissa Brisman has a reproductive law agency and practices in New Jersey, Massachusetts, Pennsylvania and New York. Because she was unable to carry a child, her eggs were fertilized with her husband’s sperm and placed in a gestational carrier, a process that has produced three children for the couple.  

In Maine, where her first two children were born, she successfully petitioned the court to have her and her husband’s names placed on the babies’ birth certificates. Otherwise, they would have had to adopt their own biological children.

Brisman’s agency advertises throughout the country, including recently in the Greensburg Pennysaver. The ad sought women to carry couples’ biological babies. It requested women ages 21-45 and required that they have previous birth experience. Nonsmokers were requested and “generous compensation” offered.

Magee was the only surrogacy facility Brisman knew of in the western part of the states. There are several in central and eastern Pennsylvania.

“People who want a baby will travel,” she said.

Would-be parents, she said, need a carrier and paperwork. The firm also helps the couple and surrogate select a clinic for the medical procedure.

The result, she said, is the birth of more than 100 babies a year.

“You want somebody who wants to do it, who wants to help somebody, somebody who’s healthy,” Brisman said.

Fees for parents, including carrier reimbursement, attorney’s fees, carrier insurance and other related costs, can average $30,000 to $40,000, according to Brisman’s agency. That figure excludes medical costs for the in vitro fertilization procedure, which some couples’ own insurance policies will cover.   

Obtaining birth orders before the second trimester, she said, can help eliminate situations like the one in Erie. Although a surrogate may later change her mind, pre-birth orders show that she relinquished any claims during her pregnancy.

Brisman said none of her surrogates have reneged after giving birth.  

“The case in Erie County puts a bad name to the entire process,” she said.

If the case leads to legislation that halts surrogacy in Pennsylvania, she said, “It would be a disgrace…Usually, these things go off without a hitch.”

Surrogate: ‘I know I helped somebody’
By Mary Pickels, Tribune-Review

By her nid-30s, Lebanon County resident Barbara McMullen was a divorced mother of four. Believing her family was complete, she underwent sterilization. After remarrying, she had the procedure reversed and had two more children.

“I got pregnant right away,” McMullen, 43, said. “I just felt really lucky.”

Later, McMullen spotted an advertisement from attorney Melissa Brisman, who operates a reproductive law practice in New Jersey. Brisman seeks women to act as gestational surrogates, carrying embryos for couples unable to have successful pregnancies.  

McMullen thought about it for several years. Then she obtained some information and talked with her obstetrician, her pastor and her husband. They all believed she was a healthy candidate whose reasons for considering surrogacy were valid.

“There is the money issue,” McMullen said. “No matter what you are compensated, you are going through a lot…If you are doing it just for the money, who’s to say your best interest is the baby?”

McMullen has since given birth to three children, including a set of twins, for two couples. She is pondering a third pregnancy some time after the new year, before she turns 45, the cut-off age at Brisman’s agency.  

She discusses her experience publicly because she believes other women should consider acting as surrogates and wants to offer her own experience as an educational opportunity.

McMullen, an at-home mother, met the first couple in spring 2002. By April, she was implanted with their previously frozen embryo at a New Jersey fertility clinic. Within 10 days, blood work confirmed the pregnancy.

The parents attended some of McMullen’s check-ups, including a sonogram and amniocentesis, which showed the baby was a girl.

He day she delivered, the couple picked her up and drove her to the Harrisburg Hospital. They stayed in the delivery room as their daughter was born. McMullen’s oldest daughter, a registered nurse, also was present. Upon discharge, the parents drove her home.

“We said our good-byes and they went home and I went home,” she said.

“To me, it’s all a mindset,” McMullen said. “I knew the baby was not mine.”

Her two preschoolers, she said, were told that their mother was carrying a baby for another woman “whose belly was broken.”

She believes her actions have taught all of her children a lesson in giving.

In the fall of 2003, she conceived again.

Last July, the twins, a boy and a girl, were born 11 minutes apart at the Reading Hospital and Medical Center.

McMullen stays in touch with both families, from weekly e-mails to occasional visits.

“You don’t think that this is your baby,” she said. “(Their) DNA will never come back to me….My bond is with the moms. We hope to always stay in touch…I can’t imagine it fizzling out, but I can’t say it won’t.”

“to me,” she said, “the emotional part is harder than the physical part. I don’t mean giving up the baby…It takes a lot of work to get to the point where we (she and the parents) are. It involves a lot of trust. It’s almost like you would do it for your sister.”

McMullen said she would not have considered a traditional surrogacy – using her own eggs.

“It has nothing to do with the legal (aspect). That, to me, would be like taking one of my kids now and giving them to someone,” she said.

McMullen said compensation varies and is worked out via contracts. Single-fetus compensation, she said, runs from about $13,000 to $17,000, while multiple births range from $17,000 to $20,000.

Her own insurance covered her deliveries.

Even guardianship is written into the contract, should anything happen to the parents after the child’s birth.

McMullen said she got very little negative feedback.

“I get bombarded with questions, and it’s all good,” she said. “the biggest question I am asked is, ‘How could you give away the baby?’ It’s not my baby.”

“At first I questioned myself. ‘Am I not a good woman because I can bear a child and not bond with it?’…If something was wrong with it, these people would never have their families.”

McMullen recalled watching the second set of parents walk out of the hospital, each carrying a baby in a car seat.

“I don’t know what other people’s beliefs or religions are,” she said. “I know I felt purpose driven…I can die saying I know I helped somebody.”