According to a report in the New York Post on February 2, 2019, Governor Cuomo is, finally, proposing a “surrogacy law” for New York state. At present, New York is one of only a handful of states, which do not have a law that legally defines surrogacy and, therefore, secures all parties in their respective legal rights through a legally executed contract. The governor correctly noted that absence of such a law in the state has to be considered discriminatory to those who have no other way to build their families.
At the present time, contracts that define surrogacy (i.e., that define a contractual relationship under which a gestational carrier, usually for a fee, carries the child of another woman but that woman after birth automatically is legally declared the mother) are under New York State law legally prohibited. To get around such legal prohibitions in states without surrogacy laws, genetic parents of embryos must currently formally “donate” their embryos to their gestational carrier in what is called a “directed” or “open” embryo donation (i.e., in contrast to most embryo donations that are “anonymous,” an embryo donation where both parties know each other). Such an embryo donation, however, does not legally secure the desired outcome of both parties. For example, if the child were to be born in New York state, the recipient of the “donated” embryos would be recorded as the legal birth mother.
In order to achieve the desired parental designation for the newborn, even after “directed” donations, both parties must still sign a surrogacy contract ahead of time in a state that offers such a legal framework and the birth must still take place in that state.
“Directed” (or “open”) embryo donation are perfectly legal in New York state and under federal regulations, and are occurring routinely, as long as such donations are not linked to payments between the parties. They quite frequently take place between family members or friends but can also occur between strangers who have agreed to meet in person before such a donation takes place.
Utilization of gestational carriers has been quickly increasing, and waiting periods for gestational carriers are, therefore, getting longer and longer. In parallel, costs for gestational carriers have been rapidly increasing as well. Most patients searching for a gestational carrier use surrogacy agencies to find suitable candidates. Those agencies must, of course, be located in states where surrogacy laws exist. They also have the legally required paperwork already available, which at least reduces the need to reinvent the wheel in each case all over again and, therefore, reduces legal costs. At the same time, these agencies charge significant fees for their involvement in finding surrogates and managing the whole process administratively.
Some patients choose to search for their own gestational carriers (the medical term for surrogates) either within their family, among friends or by placing advertisements. Though this in many cases greatly reduces costs of surrogacy, it also raises potential red flags that must be discussed with patients in advance. From the need for individual legal advice and generation of appropriate legal documents between the parties to potential social issues that may arise within families or friends, patients must be appropriately counselled. In the end, the decision is, however, of course theirs.
And here is a final word of warning about surrogacy agencies: There have been instances in past years where surrogacy agencies collected large advances from patients seeking surrogates, and then just closed down the agency without ever providing the service. Selecting credible and established surrogacy agencies is, therefore, of great importance. CHR will gladly provide patients with a list of such trusted agencies, and CHR does not accept referral fees from any of them.
CHR also strongly recommends that our physicians be given an opportunity to interview every surrogate before our patients commit financially to a given surrogate. Though most agencies do have careful and valid review processes in place in selecting surrogates, one of CHR’s physicians only very recently picked up a candidate recommended by a reputable agency a CHR patient was willing to commit to, even though the psychiatric review had found her not suitable.
Who will carry your child through pregnancy, is of utmost importance for your child’s future, and should under no circumstances ever be compromised!
To conclude our discussion of surrogacy, one also must comment on the increasing importance of surrogacy in view of the major societal changes we have witnessing over the last few decades. Surrogacy allows women genetic parenthood (i.e., use of their own eggs), even if, for medical or social reasons, they are not in a position to carry a pregnancy themselves. As economically secure single women are in increasing numbers choosing to become single mothers, we in recent years have also seen an increasing number of single straight men pursuing single fatherhood. They can do this only through use of gestational carriers. And, finally, with same-sex marriages now legal in all states of the Union, surrogacy also allows gay men, whether in a marriage or single, to become fathers and build their families.
CHR, therefore, with great anticipation looks forward to the new surrogacy law in New York state, promised by governor Cuomo. Better late than never!
This is a part of the February 2019 CHR VOICE.
Norbert Gleicher, MD, leads CHR’s clinical and research efforts as Medical Director and Chief Scientist. A world-renowned specialist in reproductive endocrinology, Dr. Gleicher has published hundreds of peer-reviewed papers and lectured globally while keeping an active clinical career focused on ovarian aging, immunological issues and other difficult cases of infertility.
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