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Last week, theNew York Postreported on a Tik Tok influencer who was experiencing a phenomenon thats called superfetation. Its an exceptionally rare condition, where a pregnant woman becomes pregnant again at the same time as another pregnancy. In the Tik Tokers case, she was actually already pregnant with twins, when she conceived athirdchild! She reports that the situation occurred entirely naturally, and that she was not taking fertility medication.

Of course, thanks to a bizarre surrogacycasefrom several years ago, loyal readers of this column were already familiar with the unusual condition of superfetation. The New York Post article even referenced that surrogacy case - that of Jessica Allen, a California woman who unknowingly became pregnant with her own child, while already pregnant as a gestational surrogate for a Chinese couple. Those twins were born in December 2016, and a lawsuit was filed in 2018 by Allen against the surrogacy agency.

Whatever happened to that case? A lot, it turns out. Including a recent filing of cross claims, in December 2020, by the surrogacy agency against Allen!

Refresher On The Case.This case blew a lot of minds, as most people didnt know that it was scientifically possible for a woman to become double pregnant. In the unusual fact pattern, Jessica Allen agreed to be a gestational surrogate, and was matched with a couple through Omega Family Global, Inc., an ominously named surrogacy agency out of San Diego. The hopeful intended parents were from China, but thats not uncommon. Per typical gestational surrogacy terms, Allen entered into a contract with the intended parents that they would compensate her for time and efforts as a gestational surrogate, including additional compensation of $1,000 per month starting the 20th week of pregnancy, if she were carrying twins.

Only one of the Chinese intended parents embryos was transferred to Allens uterus as part of the gestational surrogacy process. So it was a bit of a surprise when ultrasounds later showed that Allen was carrying two fetuses. But not that much of a surprise, really. In a small percentage of pregnancies, an embryo splits to become twins. And that is what everyone assumed had happened.

Per the contract, the intended parents paid Allen additional expenses and compensation related to the twin pregnancy. However, after the birth, it became clear that the babies were not, in fact, identical twins from a split embryo. Instead, after some confusion and genetic testing, it was revealed that one baby was the genetic child of the Chinese intended parents, while the other was the genetic child of Allen and her partner. Allen and her baby were reunited in February 2017, which was almost two months after the birth.

Allen filed suit against the surrogacy agency in July 2018, with a scathing account of her treatment after the birth. We are just now hearing the other side of the story through the recently filed cross complaint.

The Other Side.The basic facts of the case are undisputed. Allen agreed to be a surrogate, and she became pregnant with her own child at the same time as the surrogacy pregnancy. However, one of the biggest points that the surrogacy agency makes repeatedly is that Allen agreed in her contract with the intended parents, not [to] have sexual intercourse from the first day of her menstrual cycle before the embryo transfer until the date that pregnancy has been confirmed by the IVF Physician. In other words, this situation is entirely Allens fault. She contracted away her right to have sex during a key period during the surrogacy process. By breaking her agreement, she caused an emotionally traumatic and expensive situation for all involved.

The Intended Parents Devastation.The cross complaint describes how when the twin discovery was made during the ultrasound, the Intended Parents were elated about the opportunity of having twins, so they started making arrangements to accommodate each baby. They also shared the news with their friends and family. It goes on to describe the devastation of the intended parents when they found out one of their babies was not, in fact, theirs.

And, of course, there was the issue of the money. The cross complaint explains how the surrogacy agency entered a settlement with the intended parents where it paid them $8,000, reimbursing them for the extra payments they made to Allen for the twin pregnancy. In exchange, the intended parents transferred and assigned all of their rights under the contract with Allen including any and all causes of action against Allen.

When Did Everyone Know There Was An Issue?In the original complaint filed by Allen, she described sounding the alarm as to the twins not looking alike when the intended mother showed her a picture of the twins shortly after the birth. Allen described her observations being brushed off by the surrogacy agency. By contrast, the surrogacy agencys filing disputes Allens description of her own responsible conduct, instead claiming that Ms. Allen alleged that the twins both seemed of Asian descent. And that later, when Allen was informed that DNA testing showed that one of the babies was not a child of the Chinese intended parents, Allens first concern was whether there would be any ramifications for [her] as the surrogate. The cross complaint goes on to allege that Allen initially denied having sex during the contractually prohibited time period, and argued that the baby was not hers. In support of [her] argument, Ms. Allen alleged that the babies had similar eye bags and noses.

The baby at issue is now four years old. I have to admit that Im surprised that a case like this didnt settle years ago. It was a rough situation for everyone, and hopefully one that all parties can move on from in a healthy way. In the meantime, the case serves as a warning for all participants in a gestational surrogacy arrangement of the importance of those contractual sexual activity restrictions and that those 5th-grade health education classes may have left out some surprising facts about human reproduction.

Ellen Trachman is the Managing Attorney ofTrachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcastI Want To Put A Baby In You. You can reach her atbabies@abovethelaw.com.

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She Signed A Contract Not To Have Sex, Then She Got Pregnant - Above the Law