Jessica Allen’s story is complex—combining rare medical phenomena, shocking legal battles, and an unexpected new baby. The surrogate gave birth to two babies, assumed to be identical twins of the IPs, until a genetic test revealed otherwise.
Jessica was matched with a Chinese couple—the Lius—by a San Diego surrogacy agency. A single male embryo was transferred to Jessica’s uterus in April 2016, and it wasn’t until six weeks later that she learned she was actually carrying two babies. She and her doctor assumed the embryo had split, that the Lius could expect identical twin boys, and Jessica’s compensation increased from $30,000 to $35,000.
She gave birth to the twins via C-section at a healthy 39 weeks, and in direct violation of her contract, Jessica claimed she was not allowed to see the newborns or spend an hour with them. She saw a cellphone photo later—and realized they were obviously not identical twins. “I did notice that one was much lighter than the other,” she said.
A DNA test revealed that one of the babies was actually Jessica and her husband’s biological child. By then, the IPs had both boys, so Jessica and her husband worked to get their son back.
Although, Jessica is the biological mother to one of the children, she was not legally considered the parent. The intended mother became the legal mother by pre-birth court proceedings, so since she was legally the baby’s mother, she would be able to legally give up the child for adoption—and, the agency revealed, that’s exactly what she wanted.
A legal battle ensued between Jessica and the surrogacy that originally paired them with the Lius. The agency convinced the intended mother that Jessica would try to sue her, which Jessica insists she never said. The agency also demanded that Jessica and her husband pay $22,000 in compensation to get their biological son back.
Ultimately, with the help of an attorney, the Allens did not have to pay the agency or the Chinese couple and they were able to get their child back in February 2017.
Despite the rarity of this particular care, it shows how important it is to have an ironclad contract in surrogacy arrangements. This means explicitly stating various terms relating to the surrogate and aspects of her personal life that would affect the baby or the possibility of carrying the baby. In this case, important questions surround what instructions the IVF physician will give the gestational carrier and her husband in terms of avoiding sexual intercourse before and after the embryo transfer.
The intendent parent(s) should ask the doctor about how to prevent anything like this from happening; ask them how long the surrogate should abstain from sex while undergoing IVF treatments, and then how long after the IVF treatments are successful the surrogate should wait before having sex. These time restrictions should be included in the contract, so that there is a consequence for not following through. Potentially, the contract could include a part for DNA testing if for some reason, two fetuses are growing. Intended parents and surrogates may also want to include a clause regarding the monetary rights and recourse action the surrogacy agency has.
Superfetation[1] is rare, and this specific situation of superfetation and heteropaternity[2] in a surrogacy arrangement is unprecedented. This is also an extremely rare case where the use of condoms did not work to prevent pregnancy.
The lesson to be learned is that intended parents and surrogates need to ask doctors the right questions to learn all they can about ovulation, IVF treatments, fertilized egg attachment, etc. Most importantly, it is important to have clearly written contracts that address a variety of topics and have explicitly written actions to take and consequences for not following through with the specified actions.
At Worldwide Surrogacy Specialists, we have a rededicated team of legal professionals in-house that specialize in designing ironclads surrogacy contracts to ensure all parties are treated justly, compensated fairly, and treated with care and respect.
References
[1] Superfetation: Twos separate instances of fertilization occur during the same menstrual cycle. A woman is pregnant and then becomes pregnant again. The additional fetus is conceived shortly after the first; normally, both babies end up having the same birthday even though one is gestationally older than the other. It is extremely uncommon, occurring once out of a few million pregnancies. Superfetation is extremely rare and unlikely, and there is a lot of skepticism about if it actually occurs. There are physical and hormonal changes that occur after conception that are supposed to stop any addition conceptions: ovulation stops, the lining of the uterus thickens and a second embryo should not be able to attach itself, and the cervix forms a barrier to protect the fetus from anything from the outside. For superfetation to occur, three theoretically almost impossible things have to happen: an already pregnant woman must continue to ovulate, sperm must get through the barrier created by the cervix, and a fertilized egg must implant itself in a uterus that is not prepared for it. This phenomenon is relatively common in animals, but in humans there have only been about 10 reported cases of this occurring.
[2] heteropaternity: When there is more than one father of children in a multiple birth.
