An awesome act of love: Surrogacy catching on in Utah
This is an archived article that was published on sltrib.com in 2009, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Dave Hendrickson walks into the living room of his Sugar House home with an armload of babies, his blue-eyed, bubbly sons, Jackson David and Benjamin James -- one a spitting image of dad, the other a likeness of mom Julie.

The Hendrickson infants are an answer to prayer, a testament to reproductive wizardry and poster boys for a Utah surrogacy law that is just a bit older than they are.

Approved by the Utah Legislature in 2005, the law allows couples like the Hendricksons to contract with a surrogate to carry the children they desperately desire but cannot produce on their own.

In Julie's case, cystic fibrosis made pregnancy too risky. Her already fragile lungs require her to use oxygen and receive regular care, including quarterly stays in the hospital for "clean outs."

"Maybe if I had gotten married when I was 19 I could have gone on and had a child on my own," Julie said. "But I got married when I was 26."

So when she and Dave married in 2007, they knew their family plans depended on adoption or surrogacy.

A new law - with flaws?

Until 2005, Utah couples who hired a surrogate had no protection under the law and it was a crime to pay for a woman's services.

That year, the Utah Legislature approved gestational agreements as part of the Uniform Parentage Act sponsored by Republican Sen. Lyle Hillyard of Logan. The option is designed for married couples in cases where the wife cannot bear children. Usually, the wife's eggs are harvested, fertilized with the husband's sperm and transferred to the surrogate.

Hillyard predicted he would be able to count on two hands the number of contracts approved each year in Utah - and so far, he's right. In the past four years, Utah judges have approved approximately 20 gestational agreements; specifics are not available because the cases are sealed.

Utah is among a growing number of states that have adopted laws favoring gestational agreements, said Steven H. Snyder, a Minnesota attorney who is chairman of the American Bar Association's Assisted Reproductive Technologies Committee.

But Snyder said Utah's law adds unnecessary steps and expenses -- such as requiring that contracts be approved by a judge and that intended parents submit to a home study -- for both couples and state courts. Lori Nelson, a family law attorney in Salt Lake City, said the time lag caused by the process frustrates some parents so much that they seek help out of state.

Another issue: The law allows a surrogate to terminate a contract by written notice before she becomes pregnant, without being held liable. In at least two instances in Utah, surrogates backed out after contracts were approved, a loss of time, emotion and thousands of dollars on the part of the intended parents, Snyder said.

Nelson said from the perspective of some, the pre-approval period is working because it slows the process down and allows problems to emerge before a pregnancy occurs. But a better alternative, Snyder said, is a law adopted by Illinois that establishes and protects rights of intended parents in a legal contract that does not require a judge's approval.

'A birth certificate that names them as parents'

Keith L. Blauer, a reproductive endocrinologist at Reproductive Care Center in Sandy, said the center is overseeing about five or six surrogate pregnancies a year. In a typical situation a woman is unable to carry her own child because she lacks a uterus or has had previous pregnancy complications, but has viable eggs, he said.

Her eggs can be harvested, or a donor's eggs can be used. The eggs are fertilized, typically with the husband's sperm, and transferred to the surrogate. Because the process involves treatment of two women, medical costs are slightly higher than in vitro fertilization -- about $12,000 to $13,000, compared to $8,800.

Couples also have to factor in legal fees and compensation, if any, which makes cost "one of the big inhibiting factors," Blauer said.

Dave Hendrickson admits he felt overwhelmed initially by the cost, but then realized it was on par with adoption and other fertility treatments.

"I won't say it's affordable but you can do it," said Dave, who at one point planned to use a home equity loan to cover expenses.

Damian Davenport, a Salt Lake City attorney who specializes in gestational contracts, said 90 percent of his cases have involved a surrogate who was a sister, sister-in-law or close friend who carried a child for little to no compensation -- which can range from $15,000 to $30,000 for a third-party surrogate.

Still, "as our law gets more of a foothold, as people become more and more aware, we're seeing more third-party surrogates," Davenport said.

The new law is a "good thing," said Davenport, whose interest is personal. After years of infertility treatment, he and his wife explored surrogacy and adoption until she finally became pregnant.

"For most of my clients, what they care about foremost is having a child," Davenport said. "But equally important is having a birth certificate that names them as parents of the child."

'I would do that'

For the Hendricksons, adoption and surrogacy were part of their dating discussions. It even came up at a family wedding shower, when Dave's sister, Alyson Colton, asked about their plans for children.

Told they would probably seek a surrogate, Colton's immediate response was: "I would do that for you guys."

The Hendricksons initially sought help from a third-party surrogate. When that effort failed, they began to wonder quietly, to themselves, if Colton had been serious.

"It is one thing to have someone say it and another to say, 'Would you really?' " Dave said.

They had not yet broached the subject when Colton intervened.

On Christmas Day 2007, Colton, who has three children of her own with husband Brigham, called the extended family together. After a year of thought and prayer, Colton told them, she was ready to follow through on that offer to help Dave and Julie have a family.

"It was just really a spiritual thing for all of us,"Colton said. "It was just we knew this was how the babies needed to come."

Colton fretted about how her three young daughters would react but found they "just seemed really positive about it." She worried, too, about whether she would experience a sense of loss or misplaced motherly feelings once the babies were born. That wasn't the case, she said.

"Maybe it would have been harder to do for a stranger and never see the babies again," Colton said.

While someone who hears or reads about their situation might find it "weird," the Hendricksons found sharing the experience with a relative to be "very comforting.

"There is a lot of trust and an emotional motive, not just a financial motive," he said. "That is a huge part of it that just made sense."

By May, Colton was pregnant with twins -- news delivered by doctors first to Julie, who kept a diary of the pregnancy's progress.

The boys arrived a few weeks prematurely on Dec. 11, weighing in at 4.9 pounds and 4.10 pounds, but healthy enough to go home after a brief hospital stay.

Now, each day brings the joy of watching their little boys unfold, a hint of Dave here, a little bit of Julie there.

Says Colton: "It is such a personal, neat thing for our whole extended family. We just look at these babies and say, 'How could we not have them here?' "

"Awesome," said Dave. "We love it," added Julie.

Gestational agreements » Four years after law passed, about 20 have been approved.
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