On Surrogacy by Ellen Glazer

Posted On May 4th, 2016

There was a piece on today’s Morning Edition (NPR) that began something like this, “Here’s a story of the lengths one couple went to have a baby.” As someone who counsels people struggling to build their families, my ears perked up, curious as to what would follow.

The very short version, of what was a sixteen month saga, was that a gay couple had a baby through an egg donor and surrogate in Thailand. When baby Carmen was born, the surrogate tried to claim custody, saying that she did not know that the intended parents were gay and she did not support gay parenthood. Last week the Thai court ruled in favor of the biological father, Bud Lake and his husband, Manuel Santos. Morning Edition was now turning its attention to the relieved parents, celebrating with them and asking Mr. Lake what advice he’d have for others considering surrogacy. He responded, “Be sure to vet your agency. Our surrogate should never have been a surrogate.”

I agree with Lake’s advice to “vet your agency,” but wish that NPR had asked him to elaborate on this comment rather than simply dismissing his surrogate as inappropriate. Even in NPR’s brief account of the tale, there were several red flags that pointed to agency shortcomings that went beyond proper selection and screening of surrogates.

The first thing that jumped out to me was that this surrogate/gestational carrier did not seem to know that her “IP’s” were a gay couple. Surrogacy is not a “one size fits all” matter; a woman might be a wonderful surrogate for one family and a poor match with another. While it is quite possible that Lake and Santos’surrogate should not have been accepted in any program, perhaps she would have been fine if matched with a heterosexual couple. I support gay marriage and parenthood but that does not mean that everyone woman seeking to carry a baby for others wants to carry for a gay couple.

So at the very very least, this couple’s surrogate should have known they were gay. Then comes guidance in the relationship process. A good surrogacy agency does not simply find willing parties and declare, “You are matched—stay tuned for baby.” Surrogacy is a complex, intimate inter-family relationship that needs to be planted wisely and nurtured with care. From what I could tell on Morning Edition, Lake and Santos had no relationship with their surrogate. Had they spoken regularly by phone or Skype and shared doctor’s visits, it is possible that this woman would have come to a different place about gay parenthood—or at least about this gay couple becoming parents.

And then there are the legal issues. Morning Edition makes mention of Lake and his husband seeking surrogacy in Thailand “because there were no legal issues.” As it turns out, however, there was a major legal issue: according to NPR a single woman who gives birth in Thailand is considered the mother of the child. Did Lake’s agency alert the couple—and any other clients seeking surrogacy in Thailand—that this law could be problematic for them? And did the agency mention that the Thai government isn’t exactly a big fan of gay marriage and parenthood?

Morning Edition presented this as a warm, feel good story with a happy ending. As someone that shivers each time surrogacy gets bad press, I was grateful for the “positive spin” of the story. Still, I found it a sad tale in many ways. First and foremost it left a much wanted and deeply loved baby in limbo for well over the first year of her life. Next, it brought great pain and uncertainty to Lake, Santos and their surrogate for an extended period of time. In addition, it had to cause some anxiety for other couples considering or pursuing surrogacy, fearing that they too, would face unanticipated hurdles in their path to parenthood. And ironically, it ended up making an already costly process even more expensive, as mounds of legal fees had to have been added to the costs Lake and Santos planned for.

I couldn’t help but wonder, as I listened to the story, whether this couple had sought surrogacy in Thailand because they perceived it to be easier, less expensive, less complicated emotionally and possibly safer. I was reminded, yet again, that with surrogacy arrangements, the “hard road”—one filled with care, details, more care and more detail—is almost always the right path to follow.

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