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Protecting children who have too many parents
Wednesday, April 14, 2004

The comedy troupe Firesign Theater once posed the musical puzzle: "How can you be two places at once when you're not anywhere at all?"

A similar question arises with the case of the 5-month-old triplets now residing with their surrogate mother in Erie County: How can they have three parents at once and yet possibly none at all?

The answer, or lack thereof, lies in the Pennsylvania Legislature -- which, for all its obsession over abortion, has provided exactly zero help with the thorny issues of surrogacy.

You have to wonder why. It's not as if the subject hasn't come up. The past decade has seen a number of surrogacy agreements gone awry across the country, throwing the children into legal limbo. And there's no mystery as to why these disputes happen.

Human reproductive technology -- donor eggs, sperm banks, in vitro fertilization -- makes it possible for women to bear babies who are complete genetic strangers. Children in these cases may have three mothers (the egg mom, the womb mom and the legal mom) and two fathers (the sperm dad and the legal dad).

Surrogacy raises moral and ethical issues that can be endlessly debated. But when it comes to the legal issues that determine who their parents are, children shouldn't have to wait. That's why 31 states have surrogacy laws on the books, and it's why Pennsylvania should, too.

Without such guidance, five parents can equal no parents.

Remember Jaycee Buzzanca? She was born to a surrogate mother under contract to a married couple in California. But during the pregnancy, the husband left his wife and tried to avoid child support because he wasn't the biological father. Lacking any legal or judicial precedent, the judge agreed and further ruled that the wife was not the legal mother.

Jaycee was a legal orphan for four years, until a higher court declared that the divorced couple were, in fact, Jaycee's parents and ordered the ex-husband to support her.

The case currently in Erie County Common Pleas Court has a different set of complications, but they are no less vexing.

The triplets were born Nov. 19 to Danielle Bimber of Corry, a young wife and mother of three, who had contracted for her services with an agency in Marion, Ind. She was implanted with three donor eggs fertilized by a sperm dad who intended to become the legal father. Sperm dad was unmarried, but he did have a fiancee.

Let me just inject here, as a mere civilian with no credentials in the surrogacy business, that this situation strikes me as rather odd.

If a would-be father cares so much about perpetuating his own DNA that he'd hire a surrogate mother as opposed to say, adopting a child who's already here, I'd think he'd also care enough to marry his fiancee and provide that child with the legal protection of two parents. But maybe that's just me.

Anyway, Bimber gave birth to three babies.

Here's her version of what happened next: Bio-dad and his fiancee visited the triplets in the hospital for an hour, then left for several days. When the babies were ready to be released a few days before Thanksgiving, the couple said they had plans for the holiday and wouldn't be there until Friday.

So, Bimber said, she sought and received permission to take the babies home. They have lived with her family ever since. On April 2, Judge Shad Connelly, flying without statutory guidance, awarded her custody of the triplets and ordered her to work out visitation with the bio-dad. The judge also invalidated the surrogacy contract because it named no legal mother for the babies.

Bio-dad's lawyer disputes Bimber's version of events and has appealed the custody award.

What if neither Bimber nor the bio-dad had wanted these children? What if they had been born disabled, or he'd decided to keep only one and place the others for adoption? Should such matters be treated as contract violations or property disputes?

I should think not, and so should the lawmakers in Harrisburg. Maybe one of these days they'll take a break from abortion politics long enough to get some surrogacy laws on the books.

First published on April 14, 2004 at 12:00 am
Sally Kalson can be reached at 412-263-1610 or skalson@post-gazette.com.