Steven H. Snyder & Associates Attorneys at Law

Surrogacy news: Pregnant surrogate gets pregnant again

Surrogacy is a truly wonderful process that gives couples who cannot or medically should not conceive the ability to bring children into this world. For the surrogate, she is able to help a couple in a way that few can - by carrying a child for them - while the couple gets to become parents.

"No woman in the world should have to live their life without experiencing the love and the bond from a mother and a child," one surrogate said to ABC News, in talking about her thinking behind wanting to carry a child for another couple.

However, due to a very, very rare occurrence, this same woman found herself in an almost unheard of situation: Genetically speaking, she was carrying her own child, while simultaneously carrying a child for another couple.

A rare medical phenomena

The recent case made headlines around the country, as the phenomena, known as superfetation, is so rare. This occurs when a woman who is already pregnant continues to ovulate and becomes pregnant again. The two fetuses then gestate alongside one another.

The surrogate did not even realize superfetation had occurred. It was only after a single embryo from the couple was transferred and she received a positive pregnancy test that she learned she was carrying twins at a routine ultrasound. While it is rare for an embryo to split, she assumed that must have been what happened. The surrogate and the couple she was carrying for assumed they would be having identical twins.

It was not until after the twins were born and the surrogate saw a picture of the two boys that she could see noticeable differences in skin tone.

Several weeks later, a DNA test confirmed that one was genetically related to the surrogate, while the other was genetically related to the couple. Superfetation had occurred.

Legal battles and surrogacy contracts

Surrogacy is very much a legal process. Both the couple and the surrogate need to have legal counsel in order to make sure that all legal documents are in place.

A comprehensive and valid gestational carrier agreement is a vital document. Such an agreement sets forth both the surrogate's and the couple's rights and responsibilities before, during and after the pregnancy. This agreement is also necessary in order to set forth the parties' intent to establish parentage so the couple -- not the surrogate -- are the legal guardians with custody of their child or children. Unfortunately, one of the children who resulted during this surrogate pregnancy was not intended to be the couple's child!

In this extremely rare case, it does not appear that the possibility of superfetation was addressed. While the boy who is genetically related to the surrogate is now living with his biological parents, this did not happen until the boy was several months old after an avoidable legal battle did ensue.

This case -- and subsequent legal battle -- only further drives home the point that surrogacy agreements need to be impermeable -- encompassing not only all of the more common aspects of pregnancy, birth and parentage, but also what will happen in what-if and rare scenarios too.

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