Securing surrogacy: Arkansas is only one of 5 states (and D.C.) that allows parents to have children through a surrogate mother

Arkansas Democrat-Gazette Securing surrogacy Illustration
Arkansas Democrat-Gazette Securing surrogacy Illustration

Jenny Scanlon named her daughter Holland to span a gap left by the absence of shared genes.

Holland was born in Little Rock, in the back seat of a minivan, to a woman who is not genetically connected to her -- a surrogate Jenny and her husband, Bryan Scanlon, hired to have their child.

Jenny studied abroad in the Netherlands in college. She said that she found herself in Holland.

"Holland is just a part of who I am, and so that was my way to give her some of me," Jenny said.

Holland and her twin brother, Bryce, were born in May to a woman named Anna whom Jenny and Bryan had met for the first time in September, when the embryos of their children were being transferred into Anna's uterus.

After learning that they could not have children through natural means, the Little Rock couple decided to have a gestational surrogacy -- using Bryan's sperm and an egg from an anonymous donor.

Their family grew by more than they expected when they decided on surrogacy, Bryan said.

Their son's middle name is Andrew, a play on their surrogate's name, and they spent Thanksgiving with Anna, her husband and her three sons. "We consider her part of our family now," Bryan said.

They hired Anna, but her motives went beyond money, he said. "In the interview she told us one of the reasons she wanted to do it was because she wanted to help."

They found Anna through an agency that matches surrogates and intended parents, after they consulted with Heather May, a Little Rock lawyer who often works with surrogates.

Women such as Anna are usually found through surrogacy websites, which ask potential carriers to fill out a profile. Couples looking to have a baby through a surrogate can browse the websites, looking for the woman they want to carry their child.

Many surrogacy websites ask about the physical and mental well-being of the surrogate as well as personal details -- how often you drink, how close you are to your family, your relationship status.

Matching services then ask the surrogate to go through a background check, physical evaluation and psychological screening before allowing them to be in contact with intended parents.

After a couple of phone conversations with Anna, the Scanlons flew to a fertility clinic in California for the embryo transfer, although the legality of the matter was dealt with in Arkansas. They got dinner and walked around the piers, getting to know the woman who would carry their children for the next nine months.

Jenny and Anna are friends, Jenny said, as she finished typing a text to Anna.

"She's just a great person, too," Bryan said. "And she's a lot like my wife. I swear they were sisters in another life or something."

They only got closer as the pregnancy progressed, with Anna working to include Jenny in the pregnancy by keeping her updated on how she was feeling and inviting her to every doctor's appointment, Jenny said.

The twins were born a few weeks early, and they were born quickly. Anna's husband was calling Jenny, updating her on the progress.

"And he [the surrogate's husband] called back and he goes, 'She just had her in the van. There's a baby in the van,'" Jenny said.

Bryce, whose name means "swift," came right after his sister. Anna's husband texted pictures to Jenny once the babies were born.

The twins spent three nights in the hospital before going home to Arkansas with their legal parents.

BIRTH CERTIFICATES

Arkansas law states that the mother of a baby is the one who gives birth, regardless of whether she is genetically connected to the child. Legal paperwork is needed to transfer parenthood.

The Scanlons hired May to work up the contract for the surrogacy under Arkansas law, outlining how much she would be paid. May also got a pre-birth order naming Jenny and Bryan as the parents.

The original birth certificates have the surrogates' names, for statistical purposes. But they are sealed away and new certificates created with the intended parents' names, May said.

Parham Zar, managing director for Egg Donor & Surrogacy Institute, a group that works across state lines to match surrogates and intended parents, said most surrogates he works with make between $40,000 and $45,000, not including medical costs of the pregnancy.

LEGAL HOOPS

Zar works out of California, where laws are favorable to commercial surrogacy. This is not the case in most states, where those looking to become parents could face a maze of case law, restrictions and hoops to jump through.

Some states leave the decision up to each county or judicial district. Others outright ban the practice, citing potential abuse of an intended parent-surrogate relationship and the sanctity of motherhood.

Arkansas laws are some of the most favorable toward surrogacy in the country, May said.

Rep. Greg Leding (D-Fayetteville) introduced a bill during the 2017 legislative session that would have outlawed commercial surrogacy in Arkansas. Family Council, a conservative group based in Little Rock that lobbies for "traditional family values," pushed for the bill and has plans to introduce a similar piece of legislation in the next session, said Charisse Dean, one of the group's lobbyists.

"Surrogacy lends itself to a type of exploitation of women, exploitation of motherhood," Dean said.

Leding's bill died in a House committee, but Dean said she is working on research to draw up a new draft.

"Women are not chattel," Dean said. "They shouldn't be bought and sold. Women and children are not chattel. I think this will fight against the commodification of motherhood."

May said she was prepared to testify against the last bill. She said those who oppose it have a misconstrued view of surrogacy.

"Most of the women that are surrogates, at least that I have dealt with, one, they're represented by an attorney in the process," May said. "Two, they usually have jobs, and so they're not just somebody that's abusing the system. They're doing a great thing for somebody that can't have a baby."

DESTINATION: MOTHERHOOD

Arkansas' laws make it a target location for people who live in states or countries that outlaw commercial surrogacy, May said. Since she began practicing surrogacy law in 2010, she said, she has seen clients from all across the country and several from other countries.

Mary Ellen Humphrey of New York came to Little Rock when she decided on surrogacy. She wanted a sibling for her daughter, but chemotherapy treatments for breast cancer had made conception impossible, she said.

"Some states are in a gray area, and it could depend on the judge you get," Humphrey said. "I wanted to be sure that I wasn't going to have trouble taking my child home."

She connected with her surrogate through an agency called Simple Surrogacy, and they talked over the phone before deciding to continue with the pregnancy.

Jack, the baby Humphrey had through a surrogate, was born early and needed to be in the neonatal intensive care unit for three months. Humphrey couldn't spend so much time away from her daughter and her job, so the surrogate stayed with Jack and sent her updates.

Today Jack is starting kindergarten and just got cochlear ear implants, which are helping repair damage to his hearing from when he was a baby. He plays T-ball and likes to watch Paw Patrol.

Humphrey said many states don't have clear-cut laws that protect parents. "You spend a lot of money, and not only that but a lot of emotional input, so you want to know that it's going to work at the end."

Although Arkansas' laws are favorable toward surrogacy, May said, they still need adjusting to be in line with the U.S. Supreme Court's decision in 2015 legalizing same-sex marriage.

"So if a same-sex couple was denied the ability to have a baby through surrogacy or get legal parentage established, they could sue the state of Arkansas and waste a lot of taxpayer dollars," May said.

Sen. Joyce Elliott (D-Little Rock) tried to adjust the wording in existing laws during the last session, but her bill died in committee. It would have changed each reference to "husband" or "wife" to "spouse," and been in line with federal standards, May said.

"People want to have babies, and the statute is in violation of the U.S. Constitution at this point," she said.

The Scanlons' babies are just over 6 months old, on the verge of learning to crawl and putting everything they can reach into their mouths, Bryan said. In his arms, Bryce alternately gnawed his fist and grinned at his father.

"I just want people to know that it's achievable," Jenny said, as she began the process of strapping her twins into their double-stroller. "When you first think about it, you think, 'Oh that's what celebrities do.' And that was my first thought on it."

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Arkansas Democrat-Gazette

A map showing States that allow commercial surrogacy

ActiveStyle on 12/11/2017

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