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American Morning

California Surrogacy Battle Erupts

Aired August 13, 2001 - 11:06   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
LEON HARRIS, CNN ANCHOR: Joining us now with some legal insight into this surrogacy battle is Ruth Claiborne. She's an Atlanta attorney who specializes in surrogate and adoption law. We thank you for coming in and talking to us this morning because this is a fascinating story and it looks like some hearts can get broken in these kind of situations.

How often does something like this come up, because I know we don't cover every single story?

RUTH CLAIBORNE, ATTORNEY: It's extremely rare. I would liken this to a plane crash. There are many surrogacies that are going on very successfully and this is a disaster.

HARRIS: Yes. Is it clear where the law stands on this?

CLAIBORNE: Not at all clear. There are no statutes in most states addressing this and there's precious little case law, almost none. And so it's a matter of contract and it's a matter of a judge looking at the facts of the case. Unless, of course, the parties can work it out on their own, which is really preferable, if the parties can work this out and come to a resolution that either involves the original parties or finding a new family.

HARRIS: Now, you say states, the laws basically vary among the states. What do we know about California's law in this particular case?

CLAIBORNE: Really, a California attorney would need to comment on that. I don't know that there is a statute in California. There's certainly not a statute in Georgia or in many other states.

HARRIS: Is that right? Now, so if, is there one, explain to us how the market works, if you will, and I hate to use that term, but that's apparently what it is, isn't it?

CLAIBORNE: Well, I hate to use that term, also. I really can't call it a market. But individual choice is very important here and people are finding each other. Sometimes families know someone through their own circle of friends, either a family member or a close friend, who will agree to be a surrogate or a gestational carrier for them. If they don't know someone, then most intended parents are going to the Internet and they're finding surrogates there and surrogates and intended parents communicate with each other. Under the best of circumstances, they all have a psychological evaluation and they engage in a conversation with a qualified mental health professional who has some experience in this and then they have attorneys, hopefully with some experience in surrogacy, who will sit down and not just write a contract and mail it to them, but to have a face to face conversation is most important. To make sure...

HARRIS: And talk about everything that's involved.

CLAIBORNE: Talk about everything and abortion and selective reduction and what to do about any unused embryos, should there be extras. Those are some of the really tough issues.

HARRIS: How common is this idea, though, of selective reduction? Does it happen a lot?

CLAIBORNE: I've never heard of it in a case of twins. Most people will consider selective reduction for super multiples and that's usually considered...

HARRIS: Like five or six or four?

CLAIBORNE: Yes. Well, medically the physicians are now learning more and more about how to avoid the really large numbers and so they don't transfer enough embryos to ordinarily result in five or even four. Triplets, that's sort of the gray area. Some people would choose selective reduction with triplets. Many others would not.

HARRIS: Yes. Let me ask you one final question because Daryn and I were talking this morning about this particular case and the parentage involved in this story. I mean there may be three mothers. You can have the egg donor. You have the surrogate mother and then you have the adopted mother.

CLAIBORNE: Right.

HARRIS: And you have the -- and one father, at least, or in this particular case.

CLAIBORNE: Yes.

HARRIS: How -- and maybe you can't speak about California law but how generally does the law go about deciding who's the real parent in this case?

CLAIBORNE: When the egg donor donates she does so absolutely and finally. And so the egg donor is probably completely out of the picture here. The gestational carrier, since it's not genetically her child, ordinarily would not be considered the mother. And so you have the intended mother and in this case now third parties are being considered because if the intended parents decline to accept responsibility for these twins then an obvious solution would be to find another family.

HARRIS: Yes. Boy, talk about 20th century, 21st century kind of problem. CLAIBORNE: Exactly. Exactly.

HARRIS: Ruth Claiborne, thank you very much for coming in and helping us figure this whole thing out.

CLAIBORNE: Thank you.

HARRIS: We appreciate it.

CLAIBORNE: Thank you.

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