There are many things that I could say about the current New York Times article about a surrogacy gone unfortunately, and horribly wrong. I could focus on how once again, infertility and third-party reproduction has been cast in a skewed, negative light. Even just the first sentence feels like an oily, noxious mass, a slick (and rather slimy) way of injecting jaw-dropping shock into the lead:
Unable to have a baby of her own, Amy Kehoe became her own general contractor to manufacture one.
It worked; from that very first sentence, my jaw did drop from shock, even though I expected as much from the NYT. I was ready to vomit a few lines down with:
Finally, she hired the fertility clinic, IVF Michigan, which put together her creation last December.
As if the twins, the innocent babies caught in the middle of this issue, were nothing more than monsters put together by Frankenstein himself.
As you can expect, the article (and naturally the "why didn't they just adopt" comments that follow) are filled with other such vitriol.
But I'm not going to talk about that (Mel did a good job of it, as she always does).
What I am going to talk about is how this article — this unnecessary article that was used as a weapon of attack and misguided vindication — has struck a terrible fear into the hearts of current and future intended parents. Fear, though, when handled carefully can be a useful emotion. In some cases, fear can lead people to educate themselves better on how to increase the likelihood that they'll avoid that which they most fear. In the case of surrogacy, one of the biggest fears prospective intended parents face is "What happens when the surrogate decides to keep the baby?" Unfortunately for the Kehoes, they've had to face just this very challenge. Here's the rub, though, and the opinion of mine that might initially cause you to drop your jaw to drop — the Kehoes were not without fault in this situation, and a grave mistake on their side, I fear, played a huge part in the judge's decision to award custody to the surrogate.
I have been watching this situation between the Kehoes and their surrogate Laschell unravel for weeks on Surrogate Mothers Online. I have been a member there for several years and I take my role as a moderator seriously. As with any message board, it is not uncommon for there to be heated disputes, especially when the subject matter is something as intimate as third-party reproduction. Usually, I watch these types of disputes from afar and keep my personal opinions to myself, so that I can better maintain a sense of objectivity when I have to intervene and quiet situations down if things begin to get out of hand. Amy and Laschell (especially Laschell) played out a large part of their custody issues on SMO, and as usual, I stayed out of it.
I hoped and prayed that this situation would never come to greater public light with the media, because I knew that it wouldn't bode well for surrogacy in particular and assisted reproduction as a whole. Now that this case has gone public, I feel an obligation to say something about it. Anything facts about the case that I say here is now a matter of public record, and in no way am I divulging anything private. Before I go further, I'd like to state openly that NO ONE will ever have the full story on exactly what happened except the Kehoes and Laschell. I don't claim to know everything of what happened; I'm only discussing the facts as I know them and my objective opinions about them.
Here are the basic facts:
The Kehoes selected an egg donor and sperm donor, both anonymous, and found Laschell as their surrogate. Both the Kehoes and Laschell reside in Michigan, where there are strict laws against surrogacy. The state neither recognizes nor enforces surrogacy contracts, making it an "unfriendly" surrogacy state. Despite these laws (and popular belief), with careful, knowledgeable, and experienced legal guidance, it is possible to complete surrogacies in the state. Risky, but possible. Knowing the risks involved with doing surrogacy in Michigan, they proceeded with the journey and Laschell became pregnant with twins. Somewhere in the pregnancy, Laschell discovered that Amy has a type of psychological disorder which, years ago, lead to an arrest for DUI. The psychological issue was brought under control with medication and Amy has been symptom-free since then. The Kehoes stated that Laschell knew prior to pregnancy that Amy had some sort of psychological issues. Amy states that she knew of no issues until after pregnancy was achieved. Amy regularly sees a psychiatrist, who agreed that Amy is fit to parent. Despite this, Laschell decided that Amy isn't fit to parent. About a month after the twins were born and went home with the Kehoes, Amy decided to attain custody of the twins, and with a court-ordered police escort, did just that. She now states that had she known of Amy's psychological issues ahead of time, she never would have agreed to work with the Kehoes in the first place. The Kehoes fought back, but sadly, things did not end in their favor. Given Michigan's laws that do not recognize the validity of surrogacy contracts, the judge fell back to the adoption laws. As neither Amy or Scott is a genetic link to the twins, Amy — as the birth mother — was awarded full custody of the twins. Low on financial resources, the Kehoes have now stopped their efforts to reclaim their children.
This situation is unfortunate on many levels. What does this say about how mental illnesses are viewed? About how genetics play a part in custody disputes? About the weight that the intent to parent carries? The implications of the results run far and deep, many of which I won't and can't get into here. These are things that need to be considered, but in this post, I want to lean in on the angle of how to increase the chances of intended parents not ending up in a situation like this one.
In the NYT article, Laschell explained that she feels that she's been vilified by the surrogacy community of SMO. This much is true. She HAS been vilified, and rightfully so, in my humble opinion. She feels that she is being the champion to these babies, claiming them as her own so that they might avoid being raised by an unbalanced mother. As wrong and she is and misguided as she is, I do think she believes she has the babies' best interests at heart. She's had two successful surrogacies before and had no problems (to my knowledge) giving the babies to their parents. Therefore, I'm inclined to believe that she did not enter into surrogacy with the Kehoes with the intent to keep the child/children that she would carry as her own. However, this does not make what she's done right. The babies belong with the parents for whom they were intended. Unfortunately for the Kehoes, in the eyes of Michigan's surrogacy laws, intent does not make a parent, and as intended parents, they lost their children.
So how is it, then, that his situation twisted into working in favor of the surrogate? As I see it, there were two major mistakes — one is Laschell's, and one is the Kehoe's:
- Amy failed to request that the Kehoes have a psychological consult. This is a common, and very necessary step that should be taken prior to signing surrogacy contracts and definitely before any cycling takes place.
- The Kehoes failed to fully educate themselves on the proper legal channels to take prior to and during the pregnancy. With Michigan's weak surrogacy laws, they didn't have a legal leg to stand on to get custody. In hindsight, the Kehoes can see where they made their grave mistake and fought for their children.
I hold the opinion that while Laschell should have NEVER claimed
those babies for her own, Scott and Amy unfortunately made it very
difficult for themselves in the long run by not seeking out as much
legal information as possible PRIOR to beginning surrogacy, especially
given the fact that they live in a state where there are such harsh
On the end of being well-informed, Laschell states Amy's psychological
issues as her rationale for retaining custody of the twins. As an
experienced surrogate, she should have known better than to enter into
a surrogacy arrangement without proper psychological screening and
consents (for herself as well as Amy and Scott) done PRIOR to the journey. If that step had not been
overlooked on her part, then those psychological issues likely would have been
disclosed and then she could have made the decision from that point on
whether to continue forth with cycling or not.
I feel greatly for Amy and Scott, and I absolutely hate that their mistake in not making sure that all their legal bases were covered has resulted in this terrible consequence, which Amy and Scott had quietly accepted and were making steps towards putting to rest entirely. This situation has come to the public light ONLY because Laschell went to the press with the story in the hopes that she "could clear her name" (which is what she indicated on SMO). What she told the NYT is that she's bringing it to light so that Michigan's surrogacy laws can be revised to protect surrogates, intended parents, and the babies born there via surrogacy. Sadly, all she's done is made things worse, and has further frightened current and prospective intended parents to their cores.
On SMO and scattered across the blogosphere, intended parents have discussed the chill that this article ran through them. One IM wrote a moving post to her blog (which she cross-posted on SMO), which explains how she hid the article from her parents, afraid that they might read it and express negativity for her pursuing surrogacy.
My own intended mother, Miss W, sent me this email:
Don't think I'm totally weird here, but after having read that article? I just
have to say THANK GOD FOR YOU!!! Seriously, if I didn't know there
were people like you? After reading that article?
There is no way on earth that I would even be able to consider moving
forward with surrogacy! What is going through people's heads?!?!?!
Intended parents are terrified. I can't blame them. Surrogacy is scary enough as it is without such an unfortunate case being splashed in the headlines. However, what the NYT won't tell you is that most surrogacies DO NOT end with such heartbreaking results. The NYT won't tell you that with careful planning, extensive surrogacy research, and knowledgeable legal, psychological, and medical professionals as part of the team, intended parents can greatly minimize the risk of this happening. Let it be said that there are NO guarantees when it comes to surrogacy; this is the scary part of any form of ART, and especially so with surrogacy where there must be so much trust and dependency between surrogates and intended parents. As either an intended parent or surrogate, going into surrogacy with an arsenal of information in your back pocket won't ever completely eliminate the chance of a devastating journey, but it can greatly reduce odds of it happening.
Despite the Kehoe's missteps (with not seeking proper legal and psychiatric counsel prior to cycling), Laschell was completely wrong in
her actions, and in this case, does not deserve to call what she's done a "surrogacy." She was not a surrogate in this situation, and she gives those of us who ARE surrogates a smeared reputation. I am only one of many surrogates who stay true to the heart of surrogacy, which is to create new families (and not to expand our own).
Sadly and frighteningly, though few in number, there are other Laschells out there. I truly, truly hope and pray that prospective intended parents won't read this article and have it tip their scales against pursuing surrogacy. I also hope that if nothing else positive comes from this situation, that at least it will lead future intended parents and surrogates alike to take the time to develop a wide knowledge base before proceeding with a journey and to not cut any corners when they do proceed with a journey.