Fetuses and Surrogacy Lose in Legal Battle

A battle between a British surrogate mother and a California couple who allegedly demanded she abort one of the twins she is carrying will have no real winners, but at least two losers, experts say — the twins and surrogate parenting itself.

The case involves Helen Beasley, a 26-year-old surrogate mother who is six months pregnant, and is suing Charles Wheeler and Martha Berman because, she claims in legal papers, they backed out of their agreement when she refused to abort one of the twins she is carrying.

The couple denies the charge, but the case, involving the Internet, possible abortion and echoes of last winter's battle over American twins adopted illegally in Britain, has been caught in the media spotlight.

When a ‘Private Matter’ Turns Into a ‘Media Campaign’

"What makes this case such a media frenzy is that society frowns upon people abandoning children," said Shirley Zager of the Organization of Parents Through Surrogacy in Gurnee, Ill. "And then you throw in the abortion issue and you have anti-abortion groups weighing in on that matter. But in my opinion, Helen Beasley made a huge mistake by turning this into a media campaign.

"I believe the babies have been exploited — their privacy was invaded, the parents' [the California couple's] names were revealed," Zager continued. "In a case like this, surrogacy has unfairly received a black eye, and my fear is that legislators will look at this and think we, or those of us who run private surrogate parenting organizations, are improper and that we don't handle things properly."

The case began after the couple met Beasley on a surrogate-parenting Web site last year. In March, Beasley underwent in-vitro fertilization in California with Wheeler's sperm and eggs from a donor selected by the couple. In the written contract, the couple agreed to pay Beasley $20,000 to carry their child.

Wheeler and Berman, Beasley says, only wanted one baby, not two, and both sides had a verbal agreement for a "selective reduction" where one fetus would be aborted before the 12th week of pregnancy.

Beasley claims she told Wheeler and Berman she was pregnant with twins in her seventh week, but that they didn't tell her to have a selective reduction until she was in her 13th week.

At that point, Beasley says she refused to have an abortion out of concern for her own health and has filed two lawsuits. The first, filed in San Diego Superior Court, is for fraud and breach of contract and emotional distress; the other was filed in family court and seeks to revoke the couple's parenting rights so Beasley herself can find parents for the twins she plans to carry full-term.

"Their parents don't want them. They've made that very clear," Beasley told ABC San Diego affiliate KGTV in an interview. "You can't help but get attached to them. I just want what's best for them."

Other Parents Ready?

Wheeler and Berman say they were not trying to force Beasley into an abortion and had no plans to abandon the unborn fetuses at all. In a statement Sunday through their attorney, Diane Michelsen, they said they informed Beasley that they would find a couple to adopt the twins when they were born before she filed the suit and approached the media.

"No one forced Helen to do anything — she was not forced to enter into a contract, she was not forced to undergo the pregnancy, she was not forced to have an abortion or a reduction," the statement read. "There was never any possibility that these children would be abandoned. … There has been and continues to be a fully qualified couple who is ready, willing and able to immediately accept custody of the children by taking over the surrogacy contract. … Ms. [Theresa] Erickson knew this before she went to the media. But she chose to file a lawsuit and tell the media rather than us."

The couple also criticized Beasley and Erickson, for turning a "private matter which has no place in the media" into a media circus. Michelsen said they had not even received a copy of the lawsuit. Beasley and Erickson said the couple never told them about their intentions to find an adoptive couple.

An Avoidable Situation?

While experts say it is impossible to foresee the all difficulties and issues that may develop in a surrogate parenting arrangement, they believe the legal battle between Beasley and Wheeler and Berman could have been prevented.

"If they knew in the beginning about the one-child arrangement and selective reduction, why wasn't any of this documented in her written agreement?" asked Zager. "Why did Ms. Beasley agree to sit on a table and have multiple embryos planted in her? Why did she agree to travel to the United States to be a surrogate, knowing she would not get support from the British government, which is hostile to surrogacy anyway and what did she expect to get out of this? You have to wonder whether she had the proper guidance and counseling before agreeing to this [situation]."

Perhaps, one doctor says, Beasley and the California couple could have avoided their current battle by going through an agency instead of a private surrogate parent organization or Web site.

"It's impossible to put all the situations that may arise [in surrogate parenting] in a contract," said Dr. John Sampson, director of The Thorsen's Surrogate Foundation of Portland, Ore. "But at least with us, all contracts are written and reviewed by all parties. There can be revisions, but they must be added to the contract and reviewed by the parties. If you have a verbal agreement, that's when you start running into all kinds of problems."

Sampson believes the downside to a using a private agency or the Internet in surrogate parenting is that there is no formal structure to make sure both sides — the couple and surrogate mother — fully understand the arrangement and are given the proper guidance.

"With agencies, there are people who are looking out for the interests of both parties involved," he said.

However, Zager pointed out that there have been both successful — and disastrous — surrogate parenting agreements made through agencies and the Internet. Neither, she said, is more prone to legal disputes than the other.

"Most of the situations work out very, very well," Zager said. "Ninety-nine percent of the arrangements work well, and some beautiful things have come from surrogate relationships, but unfortunately you never hear about that. It's the aberrant relationships get the media attention and that's a shame."

California Courts on the Intended Parents' Side

Both Zager and Sampson noted that California case history is not on Beasley's side. Under state law, parental rights in surrogate-birth agreements go to intended parents, not the surrogate mother. The California Supreme Court's 1993 decision in Johnson vs. Calvert — where surrogate mother Anna Johnson unsuccessfully sought custody of the child she carried for California couple Crispina and Mark Calvert — supports arguments that Wheeler and Berman ultimately have the right to decide who will care for the unborn twins. The U.S. Supreme Court refused to hear the case.

A hearing in family court for Beasley and Wheeler and Berman is scheduled this week. Lawyers from both sides say they want to settle the parenting rights dispute before Beasley gives birth.