A measure before the New York Legislature could ease the path to creating a family for thousands of prospective parents: The Child-Parent Security Act, which passed the state Assembly judiciary committee in February, would lift New York’s 27-year-old ban on surrogacy contracts. It has already received support from Gov. Andrew Cuomo, who tried to add the bill to his state budget proposal.
It’s not just the usual legislative gridlock that’s kept the ban in place, though: Opponents include New York’s Roman Catholic Archdiocese, which has decried commercial surrogacy as “human trafficking.” And in an open letter to Cuomo last month, a group of former surrogates called the process “a cynical money-making enterprise” that turns women “into paid commodities to be used by those with power and money.”
“When things turned bad, we had nowhere to go, no one to help and no resources available to us,” the letter, drafted by Jennifer Lahl of the Center for Bioethics and Culture, reads in part. “We were lied to, used, exploited and still suffer long-term physical and emotional harm.”
Coloring the issue is the specter of a court case that made headlines over 30 years ago: In 1985, Mary Beth Whitehead sued for custody of the infant, dubbed Baby M, that she had carried to term for a New Jersey couple, William and Elizabeth Stern. Whitehead, who had been struggling financially, agreed to donate an egg and be inseminated for $10,000.
“A lot of states reacted pre-emptively to the negative publicity around the Baby M case,” said Denise Brogan-Kator, policy chief for the Family Equality Council and head of the Protecting Modern Families Coalition, which supports lifting the ban. “There were allegations of exploitation — of baby-selling.”
In the decades since the Baby M case, fertility technology has advanced. Now, almost all surrogacies are gestational — meaning the surrogate does not provide an egg and is not genetically related to the child she carries.
“Most states started to update their laws,” Brogan-Kator said, “but D.C., Michigan and New York actually went a step further and criminalized surrogacy contracts.”
However, D.C. legalized surrogacy contracts in 2017, and even New Jersey, where the Baby M case took place, lifted its ban last spring. Besides New York and Michigan, Louisiana is the only other state that continues to ban paid surrogacy outright. Though the numbers are still relatively small, surrogacy is on the rise in the U.S.: In 2004, there were 738 children born via surrogacy. By 2015, that had increased to 2,807.
“It’s clear that the radical right has taken on our right to form families as their next battleground,” Brogan-Kator claimed. “They’re introducing legislation to allow foster and adoption agencies to turn away same-sex couples. This is the arena they’ve chosen, and [this law] is one of the things we can do to protect our rights.”
State Sen. Brad Hoylman, a Democrat and the bill’s co-sponsor, told NBC News he wants to ensure that all of the parties in a surrogacy arrangement are protected. “We need to ensure that surrogates have access to health care and independent legal counsel, and are in a position to freely make the choice,” he explained.
Proponents of the Child-Parent Security Act point out that it goes beyond just surrogacy to address the realities of how people become parents in the 21st century: It would ease second-parent adoptions and provide for “pre-birth” orders that make intended parents the legal guardian from the moment a child is born. Currently New York lacks a clear mechanism to sever a sperm or egg donor’s parental rights, leaving the door open for an ugly custody battle or child-support suit after a child is born.
“We have this presumption of paternity that dates back to the Middle Ages,” Brian Esser, a Brooklyn lawyer who handles surrogacy and assisted reproductive technology, said. “If a woman is married, we assume her husband is the father of the child."
The proposed surrogacy legislation would clarify that donors do not have parental rights or obligations. Other protections include health insurance and access to mental health services for gestational carriers, independent legal counsel for all parties involved, as well as a requirement that intended parents take their child regardless of his or her condition.
“Right now a nonbiological parent, in order to become a parent, has to go through a long, intrusive process,” Brogan-Kator said.
In practice the ban hasn’t stopped New Yorkers from pursuing surrogacy — it has just forced them to go out of state, often at great additional expense. Intended parents typically pay a minimum of $80,000 in attorney fees, health care costs and compensation to the surrogate. Most physicians interpret the law as meaning they can’t conduct embryo transplants in New York, so they may also have to be away from home for some time to be present during an out-of-state transplantation. If they want to be a part of the pregnancy, that means even more travel and time away from work.
“The burden of travel is massive,” Esser, a gay dad himself, said. “A lot of intended parents really want to go to all the medical appointments, but you can’t just keep taking time off from work to visit the surrogate. You’re trying to bank your vacation time for when the baby arrives.”
Even if travel isn’t a hardship, the legal landscape can be a nightmare, as everyone involved is at the mercy of the patchwork of assisted-reproduction laws that exist across the country.
“Some states have really good, uniform laws, others have a few statutes or there’s no law at all,” Esser explained. “You’ll have some judges that enter a birth order as a matter of fact for a heterosexual married couple, but are much less inclined to do it for a single parent or same-sex couple.”
Esser said most of his clients, especially gay male couples, approach the process with enthusiasm and are resilient when facing setbacks. But the law would make the path to parenthood less fraught, he said.
For Hoylman the issue is personal: His two daughters, Silvia and Lucy, were conceived with the help of a surrogate in California.
“We had to travel 3,000 miles to have our kids,” he told NBC News. “That’s part of my impulse in jumping into this issue — to protect New Yorkers having to travel to other states to become parents.”
It’s not just gay New Yorkers like Esser and Hoylman who are affected by the legal issues surrounding surrogacy — some straight couples and single parents are, too. “I think of this as an LGBT issue only in the sense that not every heterosexual couple that wants children needs to rely on assisted reproduction,” Esser explained. “Almost all same-sex families do.”
Dennis Williams, a gay man, was single when he decided to work with an out-of-state surrogate in order to become a father. And while he makes a good living, he said that the financial aspect of the experience was "huge.”
“You miss appointments and milestones,” Williams told NBC News. “You keep calculating: ‘Can I take the day off? Can I afford a flight? Can I keep missing work? Do you want to be there to hear the heartbeat? Or when the sonogram shows the gender?’ You have to pick and choose.”
Williams used a surrogate in Kansas, where he grew up and still has family. Having a support system nearby was a boon, he said, but the situation wasn’t without complications: In Kansas, the birth mother’s name is required on a birth certificate. As a result, Williams had to stay in town for several weeks after the birth in order to go to adoption court, where his surrogate formally ceded her parental rights.
“I had to go through with the adoption of a child who was legally mine already,” he said, frustrated. “I think laws, like life, should be constantly evolving. They should match technology — and the reality of how people create families.”
“They’re not,” he continued. “They’re stuck in the past and in an antiquated mentality.”
While Williams celebrated the arrival of marriage equality, he said for LGBTQ New Yorkers it was only half of the equation.
“It’s undermined by an unevolved law that adds additional complications when we want to create our families,” he said. “For me, all of those rights need to exist together.”