It's a girl, you're the father, and she's keeping the baby

"It's a girl, you're the father and she’s keeping the baby."

"I found a surrogate online. We had a great experience with our first surrogate but for medical reasons she could not help us again. We decided to do another surrogacy for our second child. Then her attorney called me and said "It's a girl, you’re the father and she’s keeping the baby."" A statement by Tom Lamitina, a father of two, his son that he and his wife are raising and a daughter that their surrogate mother is raising.

Case # 1: The surrogate mother's name is Stephanie Eckerd and she delivered a baby girl in May 2007. Emma Grace was conceived with Stephanie Eckerd’s eggs and Tom Lamitina’s sperm. This kind of surrogacy is termed Traditional Surrogacy or Artificial Insemination Surrogacy. Florida law gives Eckard the absolute right to change her mind and keep the child for up to 48 hours after the birth.

According to the Lamitina’s attorney, Eckerd advertised herself as a surrogate mother online and stated she had been a surrogate mother before.

Case # 2: Shelly Baker advertised herself online as a two-time prior surrogate mother willing to help another couple. Ms. Baker stated that she wanted to help a Christian couple. Amy Kehoe saw the message and was drawn to the fact that Shelly lived only 2 hours away. They traded email messages and phone calls and met for dinner before agreeing to go forward with the surrogacy.

In July 2008, Shelly gave birth to twins and the Intended Parents. Amy and Scott Kehoe took their twins home. A week later all parties returned to court to transfer guardianship to the Kehoes. During the hearing the judge asked several questions including psychiatric history and legal infractions. Amy stated she had a psychotic disorder not otherwise specified. She had been under the care of her doctor for 8 years. She sees her psychiatrist once very three months and takes medication every day. Before her diagnosis, Amy self medicated and it was this self medication that was the reason for charges of cocaine use and driving under the influence. However, Ms. Kehoe’s psychiatrist wrote a letter stating she would be a good mother because her disease had been fully controlled for eight years and she currently had no symptoms.

Ms. Baker said she was stunned at the disclosures of the mental illness. Ms. Baker said she had no prior knowledge of this condition and it should have been revealed to her from the outset. She became concerned that Ms Kehoe might relapse and be unable to take care of the twins. One month after the birth of the twins, the Kehoes were forced to say goodbye to their babies and witness Ms. Baker drive off with them.

Two surrogate mothers, two different kinds of surrogacy, children not being raised in the homes they were intended to be raised in, a media circus, what went wrong?

The main thread connecting these two cases is the absence of professionals.

1. Both Stephanie and Shelly were repeat surrogate mothers and did not participate in psychological screening. There is no guarantee of performance just because she has done this before. The first issue a counselor will address is why she wants to do this again? What happened during the first surrogacy that she feels she never attained her goal and wants to try again? What was the relationship like with the couple? Interesting to note that Shelly Baker talked about calling her couple at 3 AM and asking them to bring her Tacos because she had a craving. Shelly said this was her way of allowing the couple to enjoy the pregnancy. Perhaps Shelly craved attention and wanted to demonstrate her power instead of her craving for Tacos? Most definitely behavior that would cause a counselor to carefully re-evaluate a candidate.

2. None of the parties completed an intake questionnaire. Remember those long forms you have to fill out for a new doctor? That is similar to an intake application. Most agencies have intake forms/questionnaires. Included are questions about mental health, mental health treatments, prior psychological appointments, outstanding child support payments, etc. The questionnaires are a tool used by mental health professionals to enable them to ask the right questions. As an example: say a couple states they saw a therapist when they lost a pregnancy at 24 weeks. Of course this is a very sad situation, but what it does is open the door to discuss the causes of the loss, was there testing done, did both parents or just one go to counseling, how long did they attend, was medication prescribed and is medication ongoing, etc. Not only does the counselor gain valuable information, she now has a name of a counselor she can consult with if necessary and she can prepare the surrogate mother that perhaps this couple will be more cautious until the pregnancy passes the date of the last loss.

3. There was no psychological evaluation of the couple. This is really an essential part of surrogacy. We understand that every couple pursuing surrogacy desires to have a child. However a skilled counselor can help a couple or an individual evaluate whether they can let go of so much control. Think of it this way: an infertile woman has gone through endless failed treatments and perhaps spent years trying to have a baby, a baby she wanted to carry herself. Along comes a lovely surrogate and achieves a pregnancy on the first attempt. She makes it seem so easy. The Intended Mother may feel resentment towards someone who was able to do what she could not. These feelings are not wrong and a person is not ungrateful in feeling these emotions. They are normal, healthy emotions and a counselor can help process the couple so they understand and can cope with such feelings. A counselor will also ask questions about mental illnesses, treatments past and present, prescription medication past and present and she will discuss whether counseling was sought in the past and if any is ongoing.

4. There was no consultation with an attorney experienced in surrogacy prior to starting the medical procedures. This is a crucial aspect to pursing surrogacy. It is really a simple notion – do not do surrogacy in a state where you will not be considered the parents. In both of the cases highlighted above, the laws were not favorable towards the Intended Parents. In Michigan commercial surrogacy is punishable by five years in prison and a $50,000 fine. Shelly Baker was not compensated for the surrogacy, except for medical bills and expenses, and is therefore considered compassionate surrogate. However, Michigan law states that surrogate contracts are void and unenforceable. Neither of the Kehoes is genetically related to the children they created leaving them without a valid claim for the children. Ms. Baker gave birth to the children and therefore was the only person that had a claim to parent these children. In the Florida case, Stephanie Eckerd was biologically related to the child she was carrying. Traditional surrogacy laws are clear in Florida; the surrogate mother has 48 hours after birth to change her mind, even if there is a signed contract. Neither one of these cases would have existed if the Intended Parents had sought legal counsel and followed their advice. As lovely as both the surrogate mothers appeared to be and despite the fact that they had been surrogate mothers before, a qualified attorney would have counseled both couples to seek a different surrogate mother in different states.

Surrogacy is about creating layers of protection. The state law is one layer, the legal contract is another layer, the psychological evaluation of the Intended Parents another, the evaluation of the surrogate mother and her husband another, ongoing counseling another, and so on. The above four points are all important and offer layers of protections. Both these cases would not exist had each couple ensured they complied with this list and availed themselves of the layers of protection an agency offers.

People lie. Some people do not mean harm to others, but they lie, small lies, but lies none the less. Surrogate mothers lie about their medical history, that they had uneventful pregnancies, that they have never tried drugs, never had an affair. Intended Parents lie about the true status of their marriage, that they will be respectful and appreciative to their surrogate mother, that they will always remember the gift she has given them, they lie about their drug history, about their finances, etc. Not everyone lies of course, but even one little lie or deliberate avoidance of telling the truth can have such negative impact on a surrogacy pregnancy. When two people are attracted to one another and one lies to the other, there is heartache, disappointment and lack of future trust. The parties can simply walk away from their relationship, However, when a surrogate mother is pregnant, no one gets to walk away. A pregnant surrogate mother can either can come to terms with the lies a couple tells her, but still comply with the contract and simply wish she had made a better selection of couples to help. Alternatively she may conclude that the lies are so material that she cannot comply with the terms of the contract. Lives could be changed forever.

It is so very important that every surrogacy relationship is entered into cautiously. Never, never enter a surrogacy relationship without all parties being evaluated by a licensed mental health professional with years of experience in surrogate parenting. This is your insurance policy. Be careful not to work with a mental health professional that claims he/she has years of experience. Get it is writing that he/she has years of experience in the field of surrogate parenting. Make sure you have a document that states he/she has acted as a counselor on over 100 cases or 500 cases. Get it in writing.

The role of the counselor is to correct the misunderstandings, hurt feelings, and bad behavior and counsel everyone to understand, forgive, agree not to repeat and acknowledge that it is in everyone’s best interest to make this work.

Perhaps if Shelly Baker had access to a mental health professional she could have aired her concerns about mental illness. Ms. Baker said she decided to keep the twins because of information that came to light about Amy’s mental health history that made her uncomfortable. She said “I am not going to be one that’s going to feel guilty if something happens.” It is perhaps reasonable to assume that if Shelly had the opportunity to discuss her fears and concerns with a counselor she was already familiar with and trusted, the case may have had a different outcome. Perhaps Ms. Baker would understand mental illness, have allowed professionals to answer her questions and not judged an illness she did not even try to understand.

In the Florida case, there was a time when Stephanie Eckert did not know if the baby she carried was her boyfriend’s or the couple’s. There was no counselor to help all the parties understand what happened and how the revelation destroyed the trust that had previously existed in their relationship. Each party felt betrayed and there was no one to guide them in how to maintain a civil relationship. Anger opened the door to poor communications, threats and statements that could be misunderstood and impossible to retract. No one can guarantee that a different outcome would have occurred had a counselor been involved, but it is as certainty that a counselor would have prevented the writing of terrible emails and helped in calming everyone down, and focused attention on determining the genetics of the baby.

There are very few surrogacy agencies that have full-time mental health professionals working with them. Do not be fooled by agencies that have a psychotherapist that screens the surrogate mother and is then available if ever needed. A counselor who does not regularly meet with the parties will be ineffective in a crisis. If a problem occurs, you need to be able to call a counselor immediately and get immediate action. A counselor has not spoken to the parties for months it will take her several sessions to get acquainted with the case, the facts and the personalities involved before he/she can offer advice and guidance. Valuable time will be lost and a possible solution may slip away. One of the very few surrogacy agencies that has a full time staff of mental health professionals is the Center for Surrogate Parenting, Inc. (www.creatingfamilies.com)

Surrogacy done safely, surrogacy done right.

“We never even got a lawyer the first time,” Tom Lamitina, 45, said. “If you’re both on the same page, why bother getting an attorney?” Besides, he added, “If we did get an attorney, she could still change her mind at the end, so it wouldn’t matter if we had an attorney or not.” No, Mr. Lamintina is wrong. Had he worked with CSP he would have benefited from a private legal consultation and would only have been matched with a surrogate mother in a state that would recognize the Intended Parents as the parents.

“My husband and I would not do something like this unless we thought it was given to us to do, “Ms. Baker said. “My belief is that God placed this on my heart for a reason.” From the moment Ms. Baker decided to be a surrogate mother, she was determined to keep professionals out of the arrangement. It was Ms. Baker who told the Kehoes she had been a surrogate mother twice before (in other words “you can trust me”), that there was no need for a psychological evaluation of any party or the need for an attorney. It was Ms. Baker who decided Mrs. Kehoe was an unfit mother due to mental illness. At no time did Ms. Baker consult with a professional to understand the disease. She could have called the Kehoe’s psychiatrist and, with permission from the Kehoes, had a consultation. She could have spoken to friends or neighbors of the Kehoes. She could have spoken to the people Ms. Kehoe worked with (Mrs. Kehoe worked at the same company for 21 years). She could have asked the courts to appoint an independent counselor to evaluate the case and make recommendations. When Ms. Baker appeared on the Dr. Phil show, Dr. Phil offered to provide free evaluation of the couple by an independent psychologist, but Ms. Baker refused. When Dr. Phil asked what she would do if the Kehoes went ahead with the evaluation and received a clearance from several independent counselors, Ms. Baker stated that it was too late, her family had bonded with the babies and it was not good for the children to bounce between homes. Dr. Phil stated that the babies were now 6 months old and within the time period when they would have no long term consequences of changing homes. Ms. Baker declined to seek an independent opinion about the effects on returning the children to the Kehoes. At every turn from the moment she decided to become a surrogate mother, Ms. Baker refused to turn to professionals. She is adamant in what she believes in and stands by the decisions she has made and cannot even contemplate that she may be making the wrong decision. Finally when Ms. Baker feels she is losing an argument she turns to the safety of religion. There was no winning for the Kehoes. They handed control to Ms. Baker from the outset and to this day Ms. Baker remains in control over the lives of these children.


Note from the author: These cases are not over. I understand that the parties involved believe that they are over because the law has decided that the surrogate mother in both cases gets to keep the child/children. These cases are not over because these children will grow up and will have opinions of their own about who they call family and whether they want contact with the Intended Parents. Tom and Gwyn Lamitina have a son who is biologically related to Emma Grace as they both have the same father. Do these children have a right to know that they have biological siblings? Amy and Scot Kehoe have remaining frozen embryos that they state they intend to use. If a baby results from the frozen embryos then these children will all be 100% biologically related. These cases are not over, they are just beginning for these children. For the sake of these children it is so important that all these parents seek psychological counseling and guidance regarding future contact and conduct.