The long road to fatherhood

Terry Clayton and Steve Oxley knew early on in their relationship that they wanted to be parents. And after a little research, they decided that commercial surrogacy was the best way to go.

Still, as Clayton notes, surrogacy wasn’t without its potential pitfalls.

“We were certainly concerned about the perils of commercial surrogacy. You hear these stories about the mother changing her mind at the last minute. And commercial surrogacy isn’t legal everywhere. It is legal in some states, but not others,” he said.

The couple, who lived in California at the time, also quickly found another drawback: cost. Although commercial surrogacy is legal in California, Clayton says, they discovered that going through a reputable agency would cost them about $100,000 to $125,000 for the full package of services.

“That just wasn’t affordable for us,” Clayton says.

But he and Oxley weren’t ready to give up on their dream. So they started researching the issue and quickly found online a large community of people who either already had children through commercial surrogacy or were in the process of having children that way.

Clayton travels frequently in his job as senior vice president of sales with a California-based furniture company. He was on a business trip early in 2009 when he found out, through that online community, that commercial surrogacy is a thriving business in India, where the service is available for about a quarter of what it would cost in California.

“I called Steve and said, ‘What do you think?’ And he was all for it,” Clayton recalls. “So I emailed a clinic I found in Mumbai. I chose them because of the price — about $26,000 not including the travel to India — and because they had a really nice website and they specifically marketed themselves to the LGBT community.”

And so the process began. Clayton and Oxley started by choosing an egg donor after studying profiles on the available donors, including their height, weight, medical history and religion. The profile on each included a “tiny head shot,” but no names. Donors, Clayton says, remain “completely anonymous.”

Clayton adds that in looking through the profiles, he and Oxley noticed that many of the women “looked unhappy.” So they decided to find one who “looked pleasant, happy” and who was relatively tall.

Clayton explains that while they chose the egg donor, the biological mother of their children, the clinic itself chose the surrogate, the woman who would carry the children. Having separate women as the egg donor and the surrogate, Clayton says, helps cut down the possibility of an emotional attachment between the women and the child.

The Spin Doctor | Myth or Fact: Are Egg Donor Agreements Necessary?

Absent clear applicable law, which is sparse in the egg donation arena, legal agreements will be heavily and perhaps exclusively relied on to clarify parentage consistent not only with the parties’ initial expectations, but also with existing analogous laws as well as public policy. Courts will also turn to any such agreements or consents for that matter to determine any liability of the medical practice. As the field of third party reproduction continues to evolve and grow, the more that can be particularly stated and defined in a written legal agreement between the parties involved from the start, the less likely the parties and those that assist them will ever face each other in a court of law to decide their respective legal rights and who is the legal parent of any resulting child.

How many times do we have to make this point? How many professionals committed to best practices have to speak out on behalf of both the recipient AND the donor when we say that clinic consents are drafted in the context of medical issues and are not the appropriate vehicle to address complex legal issues like parentage, etc. Thanks Andy for posting Meryl’s blog, I wrote about this very same issue many times in just the past year. Important stuff.

Well said, Amy. I am still amazed at how many couples proceed with an egg donor cycle without any contract between them and their donor. Instead, they simply rely upon the clinic consents. Sadly, there is no privity of contract between the Recipients and their donor which exposes all the parties to considerable risk.

Thanks as always Amy for being such a great advocate on these issues.

Surrogacy and Embryo, Sperm, & Egg Donation, What Were You Thinking?: Considering Ivf & Third-Party Reproduction

Gay, lesbian, and transgender clients, a lawyer's guide

Egg Donation, The Reasons and the Risks

Principles of oocyte and embryo donation

Assisted Reproduction, The Complete Guide to Having a Baby with the Help of a Third Party