ENCORE | How a surrogate twin pregnancy turned into a custody battle over unrelated babies
For Jessica Allen who lives in California, signing up to be a surrogate seemed like a good idea. She had two children of her own, a five-year-old and a six-month-old baby.
"It was basically a way to give back, you know, and it would just be a great way to bless someone with a child, and in return, get my family blessed financially."
Allen would be a gestational surrogate, carrying a baby made from the egg and sperm of a couple from China, the intended parents.
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She only agreed to have one embryo implanted, and the first scan showed that the pregnancy had taken. But a follow-up scan, showed two embryos. Allen was told the first must have split into two — meaning she was carrying identical twins.
"I was completely shocked," she says.
I didn't know that identical twins can come out not looking identical. So I didn't think anything of it at that time.- Jessica Allen
At 38 weeks, the babies were in breech position so a cesarean section was scheduled. The intended mother was in the room for the birth.
"I felt so bad for her, poor heart, she was a nervous wreck," Allen recalls. "I just grabbed her hand and I just told her it's going to be okay."
The intended mother was able to snap a picture of the babies being born, then took the infants with her out of the delivery room. Allen didn't see them at all.
As she recovered, Allen asked the intended mother if she could see a photo.
"They had beanies on with their head turned to the side so it was just a little side shot and I said, 'Wow, they look different.'"
But the case worker from the agency assured Allen that identical twins can be born looking different.
"I just thought of it as, 'Wow, you learn something new every day' because I didn't know that identical twins can come out not looking identical. So I didn't think anything of it at that time."
Allen and her husband Wardell Jasper thought their part was done. But they weren't.
Babies not related
About a month later, the mom started texting Allen pictures of the babies, questioning whether the babies looked the same to her.
Allen agreed the babies did not look identical in any of the photos. The intended parents are from China. Allen is white and her husband is black.
DNA tests soon showed that one of the babies was not in fact related to the Chinese parents at all.
"I immediately started freaking out. Like, What do you mean? I called my caseworker and said, 'How is the baby not theirs? Not genetically related to the father? What does that mean?'"
The case worker from the surrogacy agency encouraged Allen to get a DNA test herself. Sure enough, the baby not related to the intended parents was her son.
Allen and Jasper never got a full explanation. She could have been pregnant when the transfer was made or she may have conceived naturally after the first pregnancy was confirmed. It's a rare, but not unheard of occurrence called superfetation.
By now, the baby was in the custody of the surrogacy agency.
Allen had been paid extra for carrying twins. The case worker insisted some of that money needed to be paid back to the intended parents. She was also asking for money to pay for the care of the baby while he was in their care.
Give us our son. Of course, we want him back.- Jessica Allen
It was money that the family simply didn't have. And it was hard to find a lawyer who knew what to do in this unusual situation.
At one point Allen says the surrogacy agency offered an option — if they gave up custody rights to the boy and agreed to have him adopted out, the bills would be paid by the adoptive parents. They wanted a decision right away.
Jasper, the baby's dad was outraged.
"Know our decision? I'm sorry, didn't you just say the DNA test came back positive that he's our son? Give us our son. Of course, we want him back," he says.
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The surrogacy agency declined to be interviewed for this story, citing confidentiality concerns. A statement sent by the company's lawyer did say that Allen's version of events distorts the truth. The letter also says the company adheres to all professional, ethical and legal guidelines.
Allen and Jasper did hire a lawyer who sent one letter, demanding the agency immediately return the baby to his parents. The next day, the case worker met up with Allen in a Starbucks parking lot and handed the baby over.
He has everything we would want in a son, and more, but it's like, this was not our plan.- Wardell Jasper
Allen and Jasper named him Malachi.
"Malachi is just like his brothers, just like his daddy. Silly, goofy. He brightens up our world just by the smile when he's walking with his arms, you know, reaching out to us," says Allen.
"We're grateful, he's beautiful, he's loving, you know, he has everything we would want in a son, and more, but it's like, this was not our plan," Jasper adds.
Biological - but not legal - parents
Now, almost one year after Malachi was born, Allen and Jasper are still not recognized as the legal parents. They have no birth certificate, no social security card. They have another lawyer and are trying to set things straight.
This is a type of pain that you're never going to get over because they stole something from me that I can never get back.- Jessica Allen
This is the only known case of its kind in the world. But there is no way to know for sure if there are other cases because babies are not routinely DNA-tested at birth.
Allen would like to see that change. She says the pain of not being with her baby for the first two months of his life is something that will never go away.
"He could have came home from the hospital with me, and on my chest and in my arms and in daddy's arms, not a bunch of strangers ... being handed around, like an item," she says.
"This is a type of pain that you're never going to get over because they stole something from me that I can never get back."
This article originally appeared on The Current on December 5, 2017.
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This documentary was produced by Alison Motluk and The Current's Documentary Editor Liz Hoath.