Commercial surrogacy is a life-changing option for couples who have been unable to conceive. As one listener told KQED’s Forum in late February, her experience with ovarian cancer meant that she lost her ability to have her own children.
“I used surrogacy to have my two children,” the listener said. “And without it, we wouldn’t be able to have this incredible life that we have.”
Another caller was a gay father based in San Francisco, who had twin boys through surrogacy.
“The vast, vast majority of parents that have kids through surrogacy — it’s the biggest blessing of their life,” he said. “And they had to work extremely hard to make it happen.”
But many in the fertility field — especially commercial surrogacy — were rocked by a recent investigation by The New Yorker’s Ava Kofman, which followed the story of Kayla Elliott.
Elliott was a Texas mother of four, already carrying a baby for a Los Angeles couple, when she found out the couple had more than 20 other children.
One of the children, a baby, was reportedly hospitalized with bleeding inside the brain and eyes, indicating potential child abuse. That prompted police to visit the couple’s Arcadia home, where they found it crowded with many young infants and children.
Authorities also found surveillance footage from devices the couple set up in the house — and allegedly saw that the children were being beaten and neglected by nannies.
The children, including the baby Elliott gave birth to, were taken into custody, and the couple was arrested but later released. At the time, several surrogates were still pregnant for the couple.
For many of the children, the future remains unclear. Even amid an ongoing battle over who should have custody, the pair has engaged new surrogates.
“People are drawn to being surrogates for all sorts of different reasons, but for many of them, like Kayla, this was something they wanted to do to kind of try to make a difference,” Kofman said. “It was especially painful to realize that they might be bringing a child into a situation that not only was not great, but if anything, potentially dangerous.”
The case is highly unusual, said Deborah Wald, a certified family law specialist based in San Francisco. She said she has never seen a child born through surrogacy end up in the foster care system in her 35 years in the field.
“These typically are very wanted, very planned for, very loved children,” Wald said. “The other times there have been sort of scandals within the industry, it’s been more with professionals figuring out how to take off with the money or those kinds of things.”
KQED’s Forum spoke to Kofman and Wald about the Los Angeles family, commercial surrogacy in California and regulations around the practice.
This interview has been edited for brevity and clarity.
How unusual is this case — and what motivated the Los Angeles couple?
Ava Kofman: It’s incredibly unusual to have this many children, and certainly it seems like what was going on inside the home is quite unusual … but there’s also nothing stopping people from having as many children as they would like through surrogacy or assisted reproduction.
There’s been some great reporting recently in the Wall Street Journal, as well, showing people having upward of 100 children, in part, using surrogates.
[The couple] wanted to have a big family; they wanted to have a lot of kids as they got older, who could be successful and carry on the family bloodline and legacy.
It does seem like this is part of a wider trend we’ve seen with billionaires like Elon Musk [who has 14 children] and others who are really interested in spreading their gene pool and their legacy.
How were they able to have over 20 children through surrogates?
Kofman: This couple — after they had a few children through a professional surrogate agency — actually opened their own agency. And this is what was called Mark Surrogacy. As far as I could tell, no one’s really done this before.
The surrogates had no awareness of this, and neither, it seems, did some of the attorneys working with the agency.
Most parents are using an agency because they want a middleman, right? They want to be protected; they want to have someone who really knows the ropes. It’s a field with its own legal particularities. There [are] all kinds of things that can easily go right with experienced people, and can easily go wrong without them.
If Kayla Elliott or any other surrogates wanted to get custody of the child in this case, could they?
Kofman: Legally, it seemed like it would have been quite complicated. She definitely didn’t have any legal custody off the bat, and no surrogates do. The industry kind of wouldn’t work if that [were] the case … the surrogate is not biologically related most of the time.
In some states … there’s no federal regulation … and it’s so, so state-based. And some states are in fact even silent on the question of how surrogacy should work.
Are all versions of surrogacy commercial?
Deborah Wald: I want to make sure everyone’s aware, there’s a huge amount of surrogacy that happens … [for example] a sister having a baby for her infertile sister, that kind of thing.
I think it’s very accepted within certain cultures and in certain communities that if you can’t have a baby and you have someone who loves you who’s going to do that, they’ll do it for you.
What are the typical compensation rates for commercial surrogacy in California?
Wald: It varies a lot. So this is what the women themselves get paid. This has nothing to do with what the doctors charge or what the agencies charge. Typical rates were in the $30,000 to $50,000 range.
I still do sometimes see that. But I also recently saw a $120,000 fee to the surrogate herself. So it’s really jumped during and since COVID.
Are there protections around surrogacy in California?
Wald: Every surrogate I’ve ever represented has been looking for the same reassurance that intended parents look for, which is that she’s not doing this because she wants another child. And she wants to know that no matter what, the intended parents can’t bail. That the baby will be theirs, that she will not be legally and financially responsible for a child that’s not genetically hers, and that she never intended to parent.
California law actually requires that a surrogate have a right to independent legal counsel of her own choosing. It can’t be the same attorney who works for the agency or the same attorney who’s representing the intended parents.
She has a right to have all her medical care paid for.
Our law is clear that until the moment she gives birth, even if there’s been a pre-birth determination that the intended parents will be the legal parents, that doesn’t go into effect till the moment she gives birth. So there won’t be conflict over her right to make medical choices for herself.
In any state, when a woman gives birth, she’s the mother unless a court has said she isn’t. And so, for the intended parents to become the legal parents, there has to be an actual court action in almost every state.
In California, we do allow that court action to happen before the baby’s born, so there is complete clarity at the moment of birth as to who the parents are.
It facilitates medical decision-making for the baby. It facilitates making sure the baby is on the parents’ health insurance from the beginning. And that the intended parents are able to take the baby home from the hospital. That if the surrogate is ready to be discharged before the baby is, she’s free to leave.
There are a number of benefits to having everything clear before the baby’s born.
Are there future regulations that experts are looking at?
Wald: I was one of the attorneys who worked on our statutory structure for gestational surrogacy in California, with an eye toward making sure surrogates were well protected by it. But [Kofman’s reporting] certainly has brought other holes to light.
One of the things in real time we’re talking about right now is enacting a surrogate’s Bill of Rights for the state of California, that would include the protections we already have, [like] that she has a right to make her own medical decisions, that she has a right to counsel and good health insurance.
Particularly in response to the Mark Surrogacy situation, we’re talking about including that she has a right to better disclosures about who she’s carrying for.
Kofman: Just from doing this reporting and talking to so many of these surrogates, I’d like to just lift up kind of what they’ve told me they want to see the most, which is just a lot more transparency.
They went through such extensive vetting — psychological evaluations. Now, it’s also clear that some intended parents do the same, but that’s not often the case. That certainly wasn’t the case here.
And there’s already such a kind of a potential for a power asymmetry. There’s a financial asymmetry in the exchange, of course … just rectifying that with truly independent legal counsel, with the ability for agencies to ask hard questions of the parents, like they’re asking of the surrogates.
And for the surrogates to just know what they’re getting into. A surrogate wants to know if they’re bringing a baby into a home with 15 other children or a home with one other child.
Thinking of Elon Musk, some people may wonder about the number of kids families may be having. Can you speak about this a little bit?
Wald: What was one of the things that was so unusual about this case was, you know, people actually raising all, I mean, even Elon Musk, I don’t think he’s actually raising the 14 children.
But who’s supposed to decide that? It makes me very nervous to think about the state determining how many children a family can have. I agree that there’s an ethical and moral conversation to be had. State regulation is different from that.
What about strengthening requirements for setting up surrogacy agencies?
Kofman: Right now, it’s very easy to set up a surrogacy agency in every state but New York. [States don’t] require any sort of license. It’s much easier to set up a surrogacy agency than it is to set up a hair salon or adoption agency or child care.
Wald: Within the Academy of California Adoption and Assisted Reproduction Lawyers, we’re definitely looking at the New York statute.
It is something we’re looking at, whether we should look at a licensing requirement in the state of California and what that would look like.
It’s not easy to get legislation passed. That’s probably true in every state. It’s certainly true in this state. And particularly if it’s gonna cost the state money. So who’s gonna regulate that?
So we have to look at all of that when we try to figure out how realistic it is. But I can tell you that there are big conversations happening and a lot of smart, ethical people invested in trying to figure out how to make sure nothing like this happens again.
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