Jury Returns Surprising Verdict In Surrogacy Superfetation Case

// Who knew that getting pregnant twice — at the same time (!) — was possible? Or how much litigation might ensue when a surrogate carries two children, only one of which is for another couple?

Six years after the start of one of the most bizarre surrogacy cases in history — forcing us to learn certain rare quirks of human reproduction and the word superfetation — a jury has weighed in with an unexpected verdict.

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The surrogate asked for $10 million for damages related to being kept apart from her genetic child by the agency. The jury did find damages, though only $10,000 of injury. But not for the surrogate to receive, but to pay the agency and its attorney! What?! [Record Scratch.] What happened?

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Catch Up

For those not remembering the full story, back in 2016, a woman named Jessica Allen gave birth to twins. Allen had signed up to be a gestational surrogate through a matching agency called Omega Family Global Inc. (Omega). The agency matched her with hopeful intended parents from China, where surrogacy is still not legally permitted. Allen entered into an agreement with the Chinese couple to have one of the couple’s embryos transferred to her uterus, with the hope that a pregnancy would be achieved, and she would carry their child to birth.

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The transfer was a success. And an ultrasound a few weeks after the transfer showed that Allen was not only pregnant, but pregnant with … twins! Of course, an assumption was made that the intended parents’ single embryo had split into identical twins.

That was the assumption, at least until the birth of the children.

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Once Allen delivered the babies, it became apparent that they were not, in fact, identical twins. Genetic testing revealed that one was genetically related to the Chinese parents. The other baby was genetically related to Allen and her boyfriend at the time (now spouse), Wardell Jasper. Wow. Essentially, Allen must have gotten pregnant on her own around the same time as the IVF embryo transfer procedure.

After subsequent genetic testing confirmed that Allen and Jasper were genetic parents to one of the children, per Allen’s allegations, it took another 11 days for the baby to be reunited with her. In 2018, Allen brought suit against Omega and Frederick Gaston, a lawyer connected to Omega, for damages sustained during those 11 days. In 2020, Omega countersued Allen, noting that her contract clearly stated that she was not to have sex around the time of the transfer, and if anyone was at fault, it was her and her boyfriend.

Joint Statement Of The Case

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The agreed-upon summary of the case could not be more simple: “Plaintiff/Cross Defendant [Allen] agreed to work as a surrogate with Defendant/Cross-Plaintiff OFG [Omega]. [Allen] had sex with her then boyfriend, resulting in the birth of her own biological child. It is claimed by [Allen] that [Omega] breached its duty to [Allen] by not immediately granting physical custody of baby to [Allen]. [Omega] claims that Allen breached her contract by having sex with her boyfriend and producing her own biological child.”

The Verdict

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The jury was unanimous and unwavering in assigning blame. In question after question, the jury laid fault on Allen and Jasper, and found Omega and Gaston without fault. The jury form questions and answers included:

Q: Were Omega Family Global Inc. and Frederick Gaston negligent?
A: No

Q: Was Jessica Allen negligent?
A: Yes. (Same answer for her partner, Wardell Jasper.)

Q: Was Jessica Allen’s negligence a substantial factor in causing harm to Omega Family Global Inc.?
A: Yes. (Same for Jasper.)

Q: What are Omega Family Global Inc.’s damages?
A: $10,000

Assignment of percentage of responsibility:

Jessica Allen: 80%
Wardell Jasper: 20%

Wait, the dude was only 20% responsible for the sex? Welcome to the patriarchy!

I had a chance to speak with Frederick Gaston, the attorney vindicated by the jury verdict. His major takeaway from the rough five-year legal battle was a reinforcement in his belief to “always take the high road and, in the end, the truth will win out.” Obviously, the jury agreed.

Gaston also stated that Allen’s underlying claim itself was based on an inaccurate factual portrayal. According to Gaston, e-mails and texts directly contradicting Allen’s claims, and the jury didn’t buy that Allen suffered any damages, caused by Omega or Gaston, from any period apart from her baby.

Whether Allen will appeal the decision is yet to be seen. In the meantime, one of the many lessons and conclusions we can take from this case is: you can get pregnant, again, while pregnant! So follow your contracts, and pay close attention to when you agreed not to have sex.

Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at [email protected].

Topics

Assisted Reproductive Technology (ART), Ellen Trachman, Family Law, Superfetation, Surrogacy