Being a surrogate a matter of choice

If Thelma French lived in Michigan instead of Las Vegas, chances are good she’d be facing five years in prison and a $50,000 fine for what she laughingly calls “renting my uterus.”

That is another way of saying she acted as a commercial gestational surrogate, which is another way of saying she made money for giving birth in December at Spring Valley Hospital to twins after carrying embryos that had been implanted inside her. The embryos were the product of in vitro fertilization of eggs and sperm from the genetic parents, Great Britain’s Will and Sonia Fargher, who had tried unsuccessfully for 16 years to have children.

When you see how happy French is for the Farghers and how happy the couple is — they’re still in town waiting for a British bureaucracy to provide their little ones with passports — it’s difficult to see how anyone in Michigan and 10 other states with laws against gestational surrogacies, could see what French did as behavior that should be punished.

“Did you see the joy on the Farghers’ faces?” said French, who looks far younger than her 36 years. “That’s why I did it.”

French, a Veterans Affairs Department technician who has given birth to seven children — five of her own — says as a teen in San Francisco she met couples who were unable to conceive and her heart went out to them.

“I can’t imagine not being able to have my own children to raise and love,” she said. “You’re talking about emotional pain that won’t go away when you can’t have the family you want. That’s why I became a surrogate.”

The only African-American in Rozanne Sher-Nelson’s Footsteps to Family agency that supplies surrogates, French bristles when she hears people call surrogates in general, and minority surrogates in particular, victims of exploitation.

It was that kind of argument used two years ago by women in New Jersey that helped persuade Gov. Chris Christie to veto legislation that would have made commercial gestational surrogacy legal there.

“How can I be exploited if I sought the agency out?” said French, who notes first-time surrogates often earn more than $25,000 and medical expenses. “More black women should be surrogates. We can think for ourselves.”

Surrogacy surged into the American consciousness in 1987 when Mary Beth Whitehead, a New Jersey woman whose own egg was inseminated with the sperm of William Stern, reneged on her contract and fought unsuccessfully to keep Baby M, the daughter she bore for Stern and his wife. That style of “traditional surrogacy” is seldom done anymore because couples using in vitro fertilization don’t have to rely on the surrogate’s eggs.

Sonia Fargher says the fact French is black played no role in her selection as a surrogate — her belief in family was key.

“I did have to explain some science to my mom so she understood our children would not be black,” Fargher said.

More than 20 years ago, Anita Allen, writing in a Harvard law journal, commented on a California legal case involving Anna L. Johnson, a black woman who as a commercial surrogate gave birth to a child of European and Philippine descent and then reneged on her contract, saying her maternal feelings couldn’t be overcome even though she shared no genetic traits with the child. Johnson demanded custody of the child, which was refused by a court.

Black women, Allen wrote, “already understood to be a servant class,” could be turned into a “surrogate class,” and it is unclear whether “black women can be protected from the risks of surrogacy arrangements.”

To French, the biggest risk in surrogacy arrangements, particularly in the past, was the lack of psychological screening of potential surrogates. “I always understood the children would not be mine,” she says. “I was carefully screened.”

Sher-Nelson says her agency spends considerable time on screening: “Knock on wood, we’ve never had a problem.”

It is time, French says, for the U.S. to have a uniform law on commercial surrogacy, instead of the confusing situation in the country today that she says practically guarantees problems for surrogates, parents and children. Although as many as seven states, including Nevada, allow compensated gestational surrogacy, most states have no surrogacy laws on the books.

What that means, says Kim Surralt, the Reno attorney who drafted the surrogacy bill Nevada Gov. Brian Sandoval signed into law in 2013, is that “you are at the whim of a judge in those states. … Something’s OK one day and not the next.”

The American Society for Reproductive Medicine estimates the number of babies born in the U.S. as a result of gestational surgery — the entire process costs parents about $100,000 — jumped from 738 in 2004 to 1,593 in 2011, but many industry experts believe the number is far higher because not all surrogate births are reported as such.

The Farghers, who came to Las Vegas because of Dr. Geoffrey Sher’s expertise in fertility issues, say the way Nevada law clearly spells out how a surrogacy agreement works for everyone involved is a great relief. In Great Britain, they say, commercial surrogacy is not legal and people have to trust a surrogate to allow them to adopt their own babies.

“Many times the birth mother keeps the baby,” Will Fargher said.

If French becomes a surrogate for the second time depends on how quickly she forgets pain she hadn’t experienced before.

“To do my job, my husband had to give me four months of daily hormone injections,” she said. “I was so sore I could barely sit down. You’re not talking about a storybook pregnancy. I also had to have a C-section.”

Contact reporter Paul Harasim at pharasim@reviewjournal.com or 702-387-2908.