Jessica Allen

What happens when a surrogate mother's own child is taken by mistake by commissioning parents?


Sobbing uncontrollably three days after my C-section, I was upset that Mrs. Jane Doe — the biological mother of the twins I’d just delivered for her as a surrogate — had reneged on her promise. I was supposed to have been allowed an hour with the newborns before they were discharged from the maternity unit — just to check on how they were doing.

But Mrs. Doe and the babies—Mike and Max--had already left the hospital.

I wasn’t permitted even a glimpse of the twins before they were rushed off to the neonatal intensive care unit just after being delivered. The next day, their mom paid me a 10-minute visit and showed me a picture of them on her cellphone. “Wow! They look so different from each other,” I told her, before she snatched back her phone.

Little did I know then how right I was. Not only were Mike and Max not identical — they had completely different DNA from one another. Mike appeared to be an Asian child, and was Mrs. Doe and her husband’s biological baby. But Max, half-white and half African-American, was the biological son of my husband and me. It turned out that, after the in vitro fertilization cycle during which the Does’ embryo was transferred into my uterus and had resulted in the conception of 'Mike,' my husband and I had gotten pregnant naturally, despite using condoms, and conceived 'Max.'

I first decided to become a surrogate in fall 2015, when my oldest son was five years old, and six months after the birth of my second son.  It was basically a way to bless another couple with a child, while providing my family with a much-needed financial blessing. I also wanted to be able to afford to stay at home with my sons rather than return to my job as a senior caregiver, and we also needed more money to purchase a house.

After choosing to work with a San Diego-based surrogacy agency called Omega Family Global, I was soon matched up with Mr. and Mrs. Doe, a Chinese couple wishing to hire an American surrogate, as surrogacy was illegal in China. Although California law required me to be provided with independent counsel to help me negotiate our surrogacy contract and enforce my rights under the contract, the attorney I ended up using was the one referred to me by Omega. Right after our surrogacy contract was finalized in December 2015, I began the medical prep work involved in undertaking a surrogacy pregnancy.

In March 2016, after completing my course of medication using various strong hormones to ready my body for surrogacy, a frozen embryo using gametes provided by Mr. and Mrs. Doe was implanted in my womb. This transfer was not successful, however, and so I immediately began the preparation process again for a second embryo transfer, which took place in April 2016, at which time a single male frozen embryo was again implanted in my uterus.

Within nine days of this transfer, blood tests confirmed that I was pregnant. As per my surrogacy contract, my husband and I did not have sexual intercourse until we were given permission by the fertility doctor overseeing my surrogacy pregnancy, who recommended that we use condoms.

Then, at my six-week scan, the fertility doctor told me he detected a second baby and that I was now pregnant with twins. He suggested that the single embryo implanted in me had split into identical male twins. Never was I told during my pregnancy, however, that the twins were in separate amniotic sacs.

I was a bit scared to learn that I was carrying twins, as it meant that mine was now a high-risk pregnancy, but I heard that the Does were thrilled by the news. My $27,000 surrogacy payment— which I was to receive in monthly installments— was increased by $5,000 for the second child, as were certain expense allowances.

To ensure a healthy pregnancy and delivery, it was very important to me to follow all of the medical orders given to me, and to stay in close contact with the Does. After every doctor's appointment. I would text Mrs. Doe to let her know the babies were doing great and that I was doing well. I sent her pictures taken at every ultrasound.  I even made videos of the babies moving. I tried in every way possible to help her feel comfortable and connected even while being so far away. 

Towards the end of my pregnancy the babies were found to be in breach position, and so I was told that they would need to be delivered by caesarean-section. Finally, 38 weeks into my pregnancy, the babies were born on December 12, 2016, at Riverside Community Hospital in California. Mrs. Doe was with me in the operating room-- and seemed even more terrified than me at the idea of a C-section. “It’s gonna be OK,” I reassured her during the delivery, holding her hand.

But very sadly for me, I didn’t even get a look at the babies when they arrived in the world, because the delivery was done behind an opaque screen and they were taken from the delivery room before I had a chance to see them. 

Right away, I asked: "Did you get some pictures of the babies? Can I see a picture?" Mrs. Doe hesitated, but handed me her cell phone, and I saw just a side shot of them, with beanies on with their head, turned to the side. Although the photo was not head-on, it seemed to me that the two babies looked different from one another, and I said, "Wow they look different.” But the Omega caseworker in the room said that she too had given birth to identical twins who came out not looking identical, but whose appearance became more identical over time. I just thought at the time---"well you learn something new every day”---because I didn't even know that identical twins could come out not looking identical, and so I didn't think anything more of it at that time. 

The day after the babies were born, I again asked if I could see them, but was again told that I could not. When the babies were scheduled to leave the hospital, I asked if the babies could stop by to say goodbye, but this request was also denied. On that last day, when I knew it was going to be Mrs. Doe’s last visit to me, I said to her: "So are you going to bring the babies by with you before you leave so I can say goodbye, right?" But that's when she stated "probably not," and this is when it gets hard for me to speak. She just gave me a hug as I'm crying. That was it. The last time I saw her. Until this day I have no idea why she did not bring them to me. That really broke my heart. 

I had to stay in the hospital four nights to recover from my c-section and because I was in great pain. When I returned home from the hospital, the only thing I could think of was to continue to try to recover, get well, get back to my kids, get back to my husband and just move forward with life in general. 

Then in early January I received a text from Mrs. Doe. She sent me a picture of the babies and said: “They are not the same, right?” followed by, “Have you thought about why they are different?” She said she was now having doubts that one of the babies belonged to her. It was very obvious from the photo she sent that the babies looked nothing alike. One of the boys was clearly of Asian ancestry and one was clearly the child of a Caucasian parent and an African-American parent. Mrs. Doe stated she was waiting for the results of a DNA test, as the Chinese embassy wanted proof that the babies were genetically related to her and her husband before issuing passports to them.

And then about a week later, I get another text message from Mrs. Doe, and this time it's just a photo of the DNA results, stating that only one baby was genetically related to the Does. I immediately started freaking out like, "What do you mean?" I called my Omega caseworker, and I'm like: "How is the other baby not genetically related to the Does? What does this mean?" But of course she had no answers. Did the IVF center mess up? Did they transfer two embryos instead of one? Did they mix up the embryos? I had no idea what was going on. Despite the DNA test results obtained by the Does, the people at Omega continued to tell my husband and me that both babies were Asian. 

But it finally began to sink in that the reason I’d never been allowed to see or hold the babies after they were born was because the Omega director and the Does’ lawyer suspected from the outset that something had gone terribly wrong and that the boys were not both Asian, and that one was clearly bi-racial. They were hiding the truth to protect themselves from liability. My husband and I immediately demanded that both the second baby and me undergo a DNA test to see whether he and I were biologically related. 

A week later, I got a text message from the  Omega caseworker asking to talk. She said she had the DNA results. My husband and I found a quiet place in our home to have a video call with her. She says, "Well, the results came back and Jessica definitely is the mother of Max.” Mike was a biological match to the Does, while Max had my genes. She went on to say that an Omega caseworker was looking after Max, because the Does wanted nothing to do with the bi-racial baby who they had named Max after learning he wasn’t biologically related to them.

Our hearts dropped. We were in a state of disbelief, shock, and horror. I had given birth to a baby who turned out to be my own biological son on December 12, 2016, but did not learn the truth until January 24, 2017. How could this even be possible? I had not been allowed to see my baby when he was born, or hold him, or bring him home, feed him, care for him, bond with him, or love him.

I never got a full explanation. Was I already pregnant when I had the transfer? Did I conceive naturally after I was already confirmed pregnant with the other couple's embryo? I learned only much later, through my own research and talking with experts, that our son was conceived through a process called superfetation, where an egg is fertilized and implantation occurs after a woman is already pregnant. 

On the same day that we received the DNA results confirming that my husband and I were the biological parents of this child, Omega demanded that I pay approximately $9,200 for ‘out-of-pocket expenses’ that had been incurred by them for the baby’s care since his birth. Rather than give our son to us, which we demanded, Omega advised us the following day that there were “financial burdens and stipulations” that we would be required to pay to make things right. I was told that in addition to the out-of-pocket expenses, I would also have to pay $3,000 to get our son’s birth certificate changed, so as to reflect that we were his parents rather than the Does, before we would be given custody. 

I was further told that if we couldn’t pay these expenses, then I would have to sign a statement which said that we were giving up our rights to the baby and that he would be put up for adoption. My husband and I were again devastated and horrified. We did not have that kind of money. Two days later, we were then sent a bill from Omega in the amount of $7,308 to cover the cost of caring for our son for two weeks in January, which included legal fees, his DNA testing, and the cost of his circumcision and immunizations that had been performed without our knowledge, without discussing this with us, and without obtaining our permission. 

We were threatened with more ultimatums. We were told that the Does were going to be returning to China within ten days and if we didn’t pay all of this right away, our son would be given up for adoption, and that Omega had already contacted a couple about adopting our son. 

Several days later, we were told that the Does also wanted us to enter into a written agreement with them, where we agreed to the return of  $18,000 to $22,000 out of the $27,000 I had been paid by them---which included the return of $5,000 for the compensation I received when we learned I would be delivering twins, the return of an add-on clothes allowance for the twins amounting to $200, the return of a month’s worth of formula amounting to $400, as well as $550 for baby clothing, diapers, the extra car seat for the twins, their stroller, and wipes, etc. They even wanted the return of 62 cents for the cost of the photo that was taken of our son as part of his DNA test. 

What were we to do? We’d already spent most of the money we earned from the surrogacy contract, but now we were apparently on the hook for many thousands of dollars. We knew that we needed to find help. 

I told Omega in no uncertain terms, “We want our son,” but understood that we would still be responsible for these expenses if we kept him. It was like Max was a commodity and we were having to pay to adopt our own flesh and blood. 


I received another text from the Omega caseworker. She was checking with me to see what I wanted to do. I happened to be in church when I received the text, and I replied that I was truly lost in this situation and heartbroken. I don't have the funds to reimburse everyone or to pay for a birth certificate. Everything is about money and, because of that, we are being forced to give up a child that belongs to us. 

In her text reply, she said, like, "I understand this is very difficult. I hate to think this is about money. My only objective is to get Max in a stable home sooner than later. Now that we're getting to the point of major decisions I want to be very clear that there are financial burdens that need to be paid to make things right for Max. Clearly I should not be out of pocket for care and expenses for Max. If you don't keep Max I will need to come to meet with you and your husband to get a statement from each of you, signed and notarized, indicating that you are giving up your rights to Max. This is needed while all the other legal paperwork is processed. There would be no expense to you for this. It'll all be paid by Omega and reimbursed with the other expenses. There are no easy decisions or solutions to this very difficult situation. For the sake of Max it would be best if a decision can be made today.” 

But I’m thinking: “If you had any concern for my son, you would have given him to me the second you picked him up from the Does and not taken him into your own care. How is paying all this money back making things right for my son? Making things right for my son would have meant bringing him home to me the second you found out he belonged to me. Who are you to demand from me a notarized statement saying that I give up my rights? It's ridiculous. The DNA test came back positive. He's our son. Give us our son. We want him back.”

 But it wasn't that simple. The problem was the money. We simply didn't have it. 

Omega continued to press the adoption alternative: "Well, if you put your son up for adoption, then you will know the actual parents that take him home - by the way, we do have someone lined up to take him – and who will actually pay these bills. If you want to get rid of these bills, give up your side." 

My feelings?: “You’ve got to be kidding me.” Omega was holding our son hostage. 

At this time it was just a roller coaster for my husband and me, where we’re calling all these attorneys trying to find help, but nobody knows what to do. One civil attorney is saying this is a family law case. But then a family law attorney is saying this is a civil case. So we're basically getting thrown all over the place and nobody can give us any answers or advise us what to do because they’ve never heard of anything like this before. 

After a million phone calls and a lot of turn-downs, my husband finally found an attorney through Craigslist. I would be lying if I told you it was easy for us to come up with the money to pay this lawyer. We sold TVs, instruments, clothing, shoes…. just to get our son back. 

We spent $3,000 on this attorney, who sent Omega and the others one e-mail, saying essentially: “We don’t believe that we owe anything, we want our son returned immediately, and we can deal with the legal stuff later. Max needs to be returned immediately to his mother, and this should not be hindered by a paper settlement agreement, payments, or efforts to limit liability on Omega’s end. Linking the reimbursement money to the establishment of parentage is wrong. Please advise no later than the end of today. My clients want their child back immediately.” 

The e-mail seemed to work. There was a lot of strained negotiation between us, our lawyer and Omega, and it was an uphill battle, but Omega finally reduced the “fee” we owed the Does to zero, and told us that we could pick up our son the following morning. 

We were instructed to meet up with the Omega caseworker in a Starbucks parking lot for the drop-off of our son. When I got there, the caseworker was not there and I waited and waited. Finally, arriving late, I see her pull into the parking lot and begin to put the car seat down in back to unbuckle Max. But before she can hand him to me, I just grabbed him and said, "Give me my baby." I just grabbed him and was just kissing him, just wanting to see his face. This was the first time I was seeing my own child who I gave birth to, and he's already two months old. 

My husband was worried: Is he going to know me? Is he going to connect with me? But then he saw our son’s face and it was bright and warm. He looked at my husband and my husband looked at him and held him so gently and started kissing him on his hands, and made it clear like "daddy's here.” 

We named our son Malakai. He brightens up our world just by his smile when he's walking with his arms reaching out to us. We love our son and we're grateful. He is beautiful. He is loving. He has everything that we would want in a son, and more. 

But this was not our plan. My husband and I weren’t planning to expand our family so soon. I can’t regret becoming a surrogate mom because that would mean regretting my son. But I just hope other women considering surrogacy can learn from my story. And that a greater good will come out of this nightmare. My pain is something that I will never get over, because they stole something from me that I can never get back.




Jessica Allen and husband Wardell Jasper have sued Omega for child abduction, abuse, battery, and extortion, among other charges. 

The couple has suffered 'injury, sorrow, shock, anguish, fright, horror, nervousness, grief, anxiety, worry, humiliation, shame and severe distress,' blasts their lawyer in court documents. They are seeking a jury trial and unspecified damages from Omega whom they accuse of 'wrongfully conspiring to abduct” their son and keep him from them and extort monies from them, and acting “despicably and with oppressive, fraudulent or malicious intent.”

Malachi, the suit claims, was in poor health at the time he was returned to his parents, had breathing problems, and had severe diaper rash among other issues. 'Jessica and Wardell's shock, disbelief, horror, fear and betrayal at seeing the "human trafficking" of their son will never leave them,' the suit states. 

'They have suffered immense and irreparable loss as to what can never be regained, i.e., being able to bond with their baby during the first two months of his life, holding him, watching him sleep, putting him to bed, feeding him, playing with him, getting to know him - all of this was stolen from Jessica and Wardell, all of this they can never get back.' 

The suit added that Malachi has already exhibited symptoms of attachment disorder, resulting from the lack of nurturing, love and attention and the trauma caused by being passed around by people who had no tender feelings towards him in the first two months of his life--leaving him with no one who loved him or cared about him. 

The lawsuit also claims Omega held Malachi as a prisoner: Malachi was treated as nothing more than a 'pawn' in the defendants' conspiracy to keep him from his lawful parents and as a 'bargaining chip' the defendants could use to extort monies from Jessica and Wardell.

"The damage has been done by the defendants and Jessica, Wardell and most importantly Malachi, are now left to live with the long-lasting consequences of the defendants' wrongs against them.”


Sources for this story


This first-person account is pieced together from several sources: a complaint filed in July 2018 on behalf of Jessica Allen and her family in Superior Court of the State of California for the County of Riverside, against the Omega Family Global Inc. surrogacy clinic, the commissioning parents who contracted with Jessica to carry and deliver for them surrogate children, and a law firm who managed the legal aspects of the surrogacy arrangement; an interview of Jessica Allen conducted by Jane Ridley and appearing in a New York Post article written by her entitled “I Rented Out My Womb—and They Almost Took My Own Son” dated October 25, 2017; and an interview  conducted for CBC Radio on December 5, 2017 by Anna Maria Tremonti on a program called The Current. Because of an ongoing legal suit, Jessica Allen herself is not at liberty to speak about or comment on this story.


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