Surrogate Sanctions 

How one Tucson mother's dream to have a child turned into a legal nightmare

At age 27, Claudia Arévalo wondered if she would survive the aggressive, stage 2 breast cancer she was diagnosed with in October 2004, and, after the potent chemotherapy she was about to endure, she wondered if she'd be able to ever have children.

Her caregiver at the time suggested she consult a fertility doctor quickly, before undergoing treatment. Within a week of her diagnosis, the young law school graduate decided to have some of her eggs extracted and fertilized in vitro by her now ex-husband's sperm. Those zygotes were then frozen.

A decade later, a cancer-free and successful immigration attorney, Arévalo was ready to become a mother.

She no longer could sustain a pregnancy, but a good friend offered her womb to carry one of the zygotes. Arévalo drafted a gestational carrier agreement in August 2013, a sort of contract that explained the in vitro process, the implantation of the zygote in the other woman's womb, and that Arévalo would be the intended mother of the baby.

A few months before the due date, as Arévalo prepped for her son's arrival, she requested a pre-birth order—a piece of court paper that legitimizes the intended parents' genetic and legal connection to the child—to present to the hospital.

It wasn't granted.

Gestational carrier agreements are illegal and thus invalid in the state of Arizona.

But it wasn't until the second denial that Arévalo processed the gravity of what was happening.

In the absence of a pre-birth order, and as mandated by a state law, the gestational carrier is the legal mother of the child.

Arévalo couldn't sign off on any hospital paperwork related to her newborn, and to the nurses and doctors, she might as well had been a lamp on the desk.

As routinely done, the hospital, St. Joseph's, issued a birth certificate—a nameless one with the gestational carrier listed as the baby's mother. The staff was hostile, according to Arévalo. They wanted to ensure Arévalo's son went home to his legal mother, and told Arévalo they'd call Child Protective Services, "until the issue is resolved."

"The day my child was born, I didn't have the opportunity to hold him and say, 'This is going to be your name,'" she says. It's still impossible for her to describe her experience without bursting into tears. "So, my child did not have a name, he didn't have a social security, he didn't have a passport. My baby is at the hospital and I'm in court. They do not treat you like the mother until you have that court order."

Legally, she wasn't supposed to bring the baby home, so the gestational carrier moved into the house.

"In case CPS showed up at my house, I had to say I was babysitting," she says. "She was always there with me, supporting me. But another woman, who may not have that type of close relationship with the gestational carrier, she would have to wait until she gets legal custody of her genetic child to bring him or her home because of this law."

When it came to doctor visits, Arévalo couldn't do much but drive him to appointments.

Traveling wasn't even considered.

Arévalo is from Mexico City, and that's where most of her family lives. She'd been so eager to have a child, the first thing she wanted to do was take a few days off and bring her son to meet his family. But without any documents, she didn't dare go out of state much less travel internationally. Really, it would have looked like she was kidnapping her own child.

It took four months for Arévalo to prove she was the genetic mother, in-and-out of a Pima County Superior Court courtroom. Waiting, waiting and waiting to hear from the judge. It was an all too familiar scene and feeling. Ten years prior, while she was being treated for cancer, Arévalo's husband filed for divorce. In the process, he asked for the frozen zygotes to be destroyed.

For the next two years, Arévalo vigorously fought for the children she hoped to meet one day.

Finally, her ex-husband waived all rights to the zygotes, and gave up custody rights in the event they would result in children.

Gabriel Arévalo was born May 20, 2014. His birth symbolized many miracles to Arévalo: she had been cancer-free for nearly 10 years and she'd overcome a nasty separation, where motherhood nearly slipped through her fingers.

It saddens her that she couldn't immediately celebrate those victories.

"That was a horrible experience that I cannot express—the pain of a mother—that you are expecting your child, in my case, I had been waiting 10 years," she says. "It was a situation that made me think, 'My life is under a judge's mind or a judge's decision.' To me, that was very frustrating, and the law, I felt trapped, I couldn't do anything, I couldn't help my child. I couldn't enjoy so many beautiful moments because I was always fighting."

In July, thanks to the results of a DNA test, the court ruled Arévalo was Gabriel's mother and ordered the state's Office of Vital Records to immediately issue a new birth certificate with the baby's name and Arévalo listed as the mother.

Tucson attorney Scott Myers, an adoption, family and assisted reproduction expert, met Arévalo in the midst of the mess. After her request for a pre-birth order was denied the second time, she came to him for help.

Myers says he wishes Arévalo would have reached out to him from the start, rather than tackling this one on her own.

"You have to look beyond the statute that talks about surrogacy and look at the statutes that talk about creating birth certificates," he says. "These say the court can enter an order, saying who is the parent of the child or intended parent of the child. We would have done a stipulation by Claudia and the woman who carried her child, where they stated Claudia is the mother, we would have gotten an affidavit from the doctor that talks about how this whole process was handled. It didn't have to come down to DNA."

Myers says the degree of difficulty in these cases largely depends on the judge. After many years working with intended parents and gestational carriers, he doesn't recall more than a handful of cases as strenuous as Arévalo's.

"We had a case where a man, a single man, who worked with a gestational carrier to have a child, and the judge wouldn't take the gestational carrier off the birth certificate, the judge said he just couldn't do that," Myers says. "Sometimes it is as simple as taking the paperwork, the judge signs it and that's it, and then there are times where proving the maternity or paternity gets complicated."

Surrogacy isn't a new option, but in Arizona it's been illegal since the 1990s. The law, often called the surrogate parentage contract law, was started as a guise to battle human trafficking. However, turns out the use of gestational carriers or surrogates is an issue that splits people into groups as much as abortion and same-sex marriage.

"The exploitation of women—that was the rationale for enacting it," Myers says.

That's one of the main reasons conservative groups like the Center for Arizona Policy, which specializes in pushing for anti-abortion, religious-based movements, oppose this alternative procreation method.

"The opportunity to earn a large sum of money skews the decision-making for women who are signing up to be surrogate mothers and increases the possibility that their consent is not truly informed and voluntary," the group says in a report titled "Surrogate."

We contacted the Center for Arizona Policy, and were told by a spokesperson that they'd find someone to discuss this with us, but by press time we never heard another word.

"Our adoption laws place the focus on what is best for the children—the adopting parents are screened extensively, and a couple seeking to adopt a baby are prohibited from enticing a woman into giving up her baby with financial gifts. Yet, anyone can spend hundreds of thousands of dollars hiring a woman to serve as a 'gestational carrier' just to obtain a baby," the group says.

But whether you agree with it or not, this has been a viable way for people to procreate around the globe (2010 data from the Centers for Disease Control says infertility affects nearly 7 million people in the U.S.). In the country, the number of gestational carrier births more than doubled from 2004 to 2011, according to the American Society for Reproductive Medicine, and that momentum will get stronger overtime.

In 1994, the Arizona Court of Appeals ruled at least two provisions of the law were unconstitutional in the case Soos v. Superior Court—the battle involved a married couple that entered into an agreement with a woman to carry the couple's zygote, exactly what Arévalo did. So, half the statute, according to that decision, violates constitutional rights, but not necessarily because it makes gestational carrier agreements illegal but rather because, despite the fact this statute denies the intended mother custody by granting it to the gestational carrier, it still lets the biological father to assert his parental rights.

Well, Arizona has ignored that ruling, according to Myer. The state's Supreme Court never reviewed the appeals court's findings, and never clarified whether the law should be struck down or remain untouched. Clearly, it's still alive and Arévalo is proof of that.

This is one of those laws that has been shoved so far back into the state Legislature's closet that it's both outdated and invisible to a lot of people like Arévalo, whose only option to have children is via a gestational carrier or surrogate.

The last time lawmakers peeped into all of this was in 2011 when then-Republican state Sen. Rick Murphy (who left the state Legislature to unsuccessfully run for the Peoria City Council last year) filed an "amendment" to the statute—he merely added the word "parentage" in "surrogacy parentage contract," changing absolutely nothing of what the law intends to do.

"The law should absolutely change," Myers says. "Do I believe the Legislature we have in Arizona will do that? No. Look how conservative they are, and they are so driven by the Christian right that I don't see it changing. The only way I see anything happening is being struck down by the courts because it is unconstitutional."

While the state Legislature does nothing, Arizona is still one of five places—Indiana, Michigan, New York and D.C.—where gestational carrier and surrogacy agreements or contracts are illegal. In D.C., it could even lead to a $10,000 fine and some jail time. Even places like Texas allow them. And then there are a few states, such as New Mexico and Oregon, where you can have an agreement as long as the carrier gets no compensation aside from paying for her medical bills.

Recently, Arévalo reached out to state Reps. Victoria Steele and Stefanie Mach, both Democrats from Tucson, in the hopes some legislation to change this law could be introduced. She still hasn't heard back from them, but she won't stop making noise until something changes. She hopes more mothers will speak up.

These days, Arévalo is happy. Her now 8-month-old baby is healthy, and recently got to meet his family in Mexico City.

But while the legal judgment is over, Arévalo has come face-to-face with social finger-pointing.

During Christmas time, Arévalo volunteered Gabriel to portray baby Jesus in a Christmas play at her church, St. Cyril. They said no for two reasons: his parents are divorced and he is an in vitro child, born from a gestational carrier.

A few weeks after that, the church issued a handout.

"With our Catholic Church's very strong pro-life stance and the availability of various medical procedures that promote procreation, some Catholics presume that use of these procedures are acceptable practices," the handout says. "Techniques that entail the dissociation of husband and wife, by the intrusion of a person other than the couple (donation of sperm or ovum, surrogate uterus), are gravely immoral."

As for Arévalo, she'd still like for Gabriel to have siblings. But she says she'd head to California, where these agreements are legal for heterosexual and lesbian, bisexual and gay individuals.

"I want him (Gabriel) to know that his mother was fighting for him, for him to have a name, that he has the same rights as all other children," she says. "I have the same rights as any other mother. Just because I couldn't have my own child because I am a cancer survivor, that doesn't mean I shouldn't have the same rights. These laws have to change, because we suffer. It's a lot of emotional pain."

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