NYS now more family-friendly
New York’s new law legalizing gestational surrogacy is a big deal. It permits women to be compensated for carrying a baby that isn’t genetically theirs. I know this because as a fertility specialist, I help people create the families they desperately want, in spite of physical obstacles.
The decision to use a gestational carrier is a difficult one, and in many cases it is made after an arduous journey. After multiple failed in-vitro fertilization and transfer cycles, asking someone else to help you carry a child can be demoralizing. Couples sometimes develop a deep sense of failure and guilt, as can women who are unable to carry a pregnancy due to a medical condition. Yet for them, and for the same-sex male couples who also turn to surrogacy as a way to build their families, New York State traditionally made the process of compensated surrogacy illegal, sending would-be parents to neighboring states to receive care. New York was essentially telling patients that their family-building solution was illegitimate. This deterred many patients from considering gestational carriers as an option.
Patients looking to use a gestational carrier would need to find a fertility practice outside of the state, usually in Connecticut or New Jersey, and establish care with a physician who was not familiar with their history. Patients would often need to repeat medical screening or psychological counseling with the new clinic. The whole thing made a grueling, expensive, and emotionally charged process that much harder and more costly.
New York’s long ban on commercial surrogacy stemmed from the case of Baby M. In that fierce and widely publicized court battle, Mary Beth Whitehead argued that she should be allowed to keep the child she’d carried for William and Elizabeth Stern. As a traditional surrogate, Ms. Whitehead was biologically related to Baby M — she had provided the egg — which made the court’s quandary all the more difficult.
New York slammed the door on surrogacy contracts, but as the years went by and reproductive technology enabled gestational surrogacy, in which a gestational carrier receives an embryo created from a donor egg or egg from one intended parent and donor sperm or sperm from the other intended parent, other states eased restrictions. Prior to the Child-Parent Security Act (CPSA) which took effect one month ago, on Feb. 15, New York was one of just a handful of states in the country that still criminalized compensated gestational surrogacy.
That put us in uncomfortable company. In Louisiana, not only is it prohibited to pay a carrier, but uncompensated gestational surrogacy is only legal if the intended parents are heterosexual. In Michigan, no surrogacy agreement of any sort is legally enforceable. The situation there is so unwelcoming that in January a couple learned they would have to adopt their own newborn twins, even though they had always intended to parent the babies — and even though the gestational carrier agreed with the couple and joined them in asking the court to allow them to do so.
I’m thrilled that last month New York finally made it official: While traditional surrogacy — in which the carrier is also the egg donor — is still banned, the state now recognizes that gestational carrier arrangements are a safe, respectful option for parents-tobe. The CPSA protects the carrier by requiring the intended parents to pay for her health and life insurance, and an attorney of her own, and ensuring that she has sole say over medical decisions related to the pregnancy. At the same time, it protects intended parents by establishing their parental rights as soon as the baby is born. There’s no longer a need for expensive adoption proceedings, whether there’s a single intended parent or a couple — or whether the parentor parents-to-be are married or unmarried, same-sex or different sex, cis or trans.
We’ve known for a year that the new law was coming, and in that time reproductive specialists have seen an uptick in interest among prospective parents. In part that may be due to an increase in the number of employer-sponsored health insurance plans that now cover gestational carrier arrangements. What’s clear to me personally is that, a month after taking effect, the new law is already bringing an extra layer of comfort and ease to my patients who are contemplating using a gestational carrier. I’m working with a couple who are looking forward to their embryo being transferred into their carrier soon. They are relieved that the procedure will take place in a clinic they know and will be overseen by doctors they trust.
As a doctor and the proud parent of a toddler born with the help of assisted reproduction, I’m honored to help my patients create a family of their own, free of even the smallest amount of state-sponsored stigma.