A bill to legalize paid surrogacy in New York stalled in the Assembly. Here’s why the issue became so divisive.
By Christina Caron
This story was originally published on June 26, 2019 in NYT Parenting.
A New York bill to legalize paid surrogacy was the subject of intense debate this year. For supporters, it was a no-brainer. Embracing surrogacy was beneficial to infertile couples and meaningful to the L.G.B.T. community, they argued. And it is already permitted in 47 other states. Why should New York be an outlier?
Not so fast, said prominent academics and doctors, who insisted the bill did not do enough to protect the health and rights of surrogates. Some opponents also said that it should not be considered a gay rights issue.
The legislation passed in the New York State Senate in June, but quickly stalled in the Assembly.
Under current New York law, paid surrogacy is punishable by a fine. Unpaid surrogacy agreements are not legally binding or enforceable. Last Thursday, Carl E. Heastie, the Assembly speaker, indicated in a statement that the bill would not be brought to a vote this session.
“We must ensure that the health and welfare of women who enter into these arrangements are protected, and that reproductive surrogacy does not become commercialized,” the statement said. “I look forward to continuing this conversation in the coming months with our members and interested parties to develop a solution that works for everyone.”
Surrogacy arrangements might appear straightforward, but some experts have said that they deserve deeper scrutiny. Here’s a look at why surrogacy is so complex.
There are two forms of surrogacy: gestational surrogacy, where the surrogate is not genetically related to the child; and traditional surrogacy, where the surrogate uses her own egg to conceive a child. (Traditional surrogacy is far less common than gestational surrogacy, and is often prohibited.) The New York bill aimed to legalize gestational surrogacy.
In order for a gestational surrogate to carry another person’s child, she must undergo in vitro fertilization, which requires multiple hormone injections. An egg, derived from the intended mother or a donor, is fertilized outside of the surrogate’s body with sperm that comes from either the intended father or a donor. The embryo is then transferred into the surrogate’s uterus.
Because gestational surrogacy is such an expensive process for the intended parents — it can cost more than $100,000 — they often ask if the surrogate is comfortable with transferring more than one embryo into her uterus at a time to increase the chances of pregnancy.
There are no federal laws governing surrogacy, which means states have made their own rules. Surrogacy laws vary from state to state, presenting a complicated web of differing rules and regulations.
The oft-cited Baby M case, in which a New Jersey woman who was a traditional surrogate for a couple in 1985 decided she wanted to keep the baby after giving birth, resulted in the decision of some states, including New York, to ban surrogacy. The New Jersey Supreme Court gave custody of the baby, referred to as “Baby M,” to the couple.
But since then, states have become more accepting of surrogacy. Washington State and New Jersey legalized paid surrogacy last year. There are now 47 states where gestational surrogacy is permitted, according to Creative Family Connections, a surrogacy agency in Chevy Chase, Md., that tracks state laws. That does not mean that all 47 states have laws allowing surrogacy. In some cases, surrogacy is permitted because there are no state statutes prohibiting it. In other states, like Indiana, surrogacy contracts are not enforceable but some courts have granted pre-birth orders for intended parents, which establish the intended parents as the baby’s legal parents.
“Don’t try to do this without a lawyer,” said Diane Hinson, a lawyer in Washington, D.C., and founder of Creative Family Connections. “There are too many ramifications.”
Disagreements can arise, for instance, if the intended family and the surrogate have differing opinions on what to do if the fetus develops Down syndrome or if the surrogate unintentionally becomes pregnant with triplets.
Only a handful of states — including Florida, Virginia and Washington State — permit traditional surrogacy, where the surrogate uses her own egg, Ms. Hinson said, because “when it goes wrong, it goes really wrong.” Case in point: Baby M.
While the legalization of paid surrogacy has spread in the United States, the opposite has happened abroad. Paid surrogacy is now banned in Thailand, Cambodia, China and much of Western Europe.
Last year, India also initiated a ban over concerns that surrogates were being exploited by intended parents and commercial surrogacy providers. But the ban has only served to deepen the exploitation, said Sharmila Rudrappa, a sociology professor at the University of Texas at Austin, in a letter to New York lawmakers. Women in India are now being recruited as unpaid “altruistic” surrogates and no longer have contracts to protect them. “Commercial surrogacy networks that are established upon legalization are not easily dismantled,” Dr. Rudrappa wrote.
Foreign couples seeking surrogates have begun flocking to California, where the fertility industry is thriving, and the state’s laws are favorable for international surrogacy clients.
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A 2017 study of 124 gestational surrogates found that newborns who were carried by gestational surrogates had higher rates of preterm birth and low birth weight than the surrogate’s previous births of their own children. The gestational surrogate births also had more complications, including gestational diabetes, hypertension, placenta previa and cesarean section.
Another study, published in the American Journal of Obstetrics and Gynecology in 2016, found that women who became pregnant by using eggs from other women had an increased risk of pre-eclampsia when compared to those who became pregnant with their own eggs — either with or without the use of other assisted reproductive technology methods.
Dr. Wendy Chavkin, a professor of population and family health and obstetrics-gynecology at Columbia University, cited these studies and many others in a letter to the New York Assembly. The letter, which was signed by 10 other medical experts, urged lawmakers to consider the health risks that surrogates might undertake, which they described as “above and beyond the risks of normal pregnancy and childbirth.”
If the New York bill passes, a woman who agrees to be a surrogate would have the opportunity to decide whether to agree to a medically unnecessary C-section or to have more than one embryo transferred into her uterus at a time. But according to Dr. Chavkin, doctors shouldn’t be offering to do either of these things because such unnecessary procedures can come with risks.
“As far as I’m concerned that’s bad medicine, that’s malpractice,” Dr. Chavkin said in an interview.
Gestational surrogates, who often want to fulfill the desires of the people who are paying them, are in a difficult position, which can influence their decision-making process, Dr. Chavkin added.
“Part of the way in which many women surrogates rationalize the whole thing to themselves is to see themselves as very benevolent and to become very concerned with pleasing the intended parents,” she said.
Jessie Lescarbeau, 33, a nurse practitioner in Pittsfield, N.H., agreed to be a surrogate for a gay male couple who were close friends. After one failed round of I.V.F., they tried again and Ms. Lescarbeau became pregnant, eventually delivering the couple’s first son. When they asked if she would be willing to do it again, “it was pretty easy to say yes,” she said.
“I always enjoyed being pregnant and had good pregnancies,” she said, adding that it was a “great experience” to give them a biological child.
“They are just such doting dads,” Ms. Lescarbeau said.
For the next attempt, they inserted two embryos. Soon she found out she was pregnant with triplets.
“It was kind of a shock,” she said.
She and the two fathers spoke with doctors about the risks involved with carrying triplets, and the possibility of reducing her pregnancy to a twin pregnancy.
“I wasn’t comfortable making that decision on my own,” Ms. Lescarbeau said. “I let the guys know that whatever they wanted I support because I knew that they were going to keep my health at heart if anything was to happen.”
The fathers decided together to keep all three babies. She carried them to 34 weeks and ended up having a C-section, followed by a postpartum hemorrhage.
When compared to her other pregnancies — she has three children of her own — “it was a lot more physically to recover from,” she said.
She also experienced postpartum depression, which she had dealt with during a past pregnancy, but “it was probably a little worse this time around,” she said.
Other women, however, defy the odds and continue to have healthy pregnancies time and again.
Jessica Schulz, 35, a credentialing specialist at a hospital in Bryan, Tex., had five of her own children before exploring surrogacy.
“I need to help someone,” she recalled thinking. “I love being pregnant.”
She signed up with an agency in California, reassured by the background checks it performed on its intended parents. She delivered twins and later delivered a single child without complications, she said. Then she agreed to be a surrogate two more times for a couple she met through mutual friends. Each were vaginal deliveries.
The hormone injections necessary for I.V.F. gave her pause, but, she said, she experienced no side effects.
“Once that first shot is done, the rest are easy,” she said.
Surrogates are often perceived as being primarily motivated by financial gain.
But for Ms. Schultz and many others, being a surrogate was not about the money.
“Many people want a genetic connection to their child,” she said. “Why we want that, I don’t know. But it’s just human desire. So I wanted to help somebody have that.”
Ms. Schultz said that she would consider having a sixth child via surrogacy if one of the families she already carried for decided they wanted more children.
“I have amazing relationships with them, they’ve become family,” she added. “It’s a beautiful thing.”
Sharon Bassan, a postdoctoral research associate at the University Center for Human Values at Princeton University who has investigated cross-border reproductive markets, has hypothesized that paid surrogates who receive recognition for their contribution — such as acknowledgment, appreciation or gratitude from the intended parents — are more likely to be satisfied with the experience than those who do not. “They do want to do something that is significant,” Dr. Bassan said. “If they’re coming out of these transactions feeling that they have given more than they gained — and usually when I say ‘more than they gained’ I mean emotionally, not financially — then this is a problem to me.”
Although Ms. Schultz was paid for each of her pregnancies, she advised other women not to become a surrogate for the compensation. “Surrogacy is not for everyone,” said Ms. Shultz, who received fees of about $27,000 to $30,000 per pregnancy in addition to compensation for her medical and legal bills. “Don’t do it because you think you’re going to gain something financially. If you boil it down to compensation per hour you make about $4.50 per hour. You make more at McDonald’s, right?”
For some women, however, recognition comes in the form of financial compensation.
Emily Taylor, 34, a single mother who works as a translator in Greensboro, N.C., said she had a complication-free pregnancy and delivery when her first and only child was born. She also had thousands of dollars in school loans. So she decided to become a surrogate to earn more money.
She agreed to carry a child for a couple in another state for a flat rate of $5,000 each month of her pregnancy, and compensation for things like travel and medical fees. The extra income allowed her to send her 3-year-old to a pricey Montessori preschool, she said, and Ms. Taylor also reduced her student loans.
“It’s really helped me tremendously,” she said.
Without surrogacy payments, she added, “I might be barely breaking even. I’d probably be living paycheck to paycheck.”
Ms. Taylor, who is now in the third trimester of her pregnancy as a surrogate, also started a few threads on Reddit this month to generate referrals to the surrogacy company she signed up with. She will receive compensation if any of those women make it through the selection process and participate in an embryo transfer, Ms. Taylor said.
In the debate over the commercialization of surrogacy, it’s important to ask whether paid surrogacy is really all that different from other potentially exploitative things, Dr. Bassan said.
People take risks and commoditize themselves all the time, she added, including in the job market.
“The parallels are always there.”
According to a report from Columbia Law School, fees for surrogates in the United States vary considerably and are estimated to be between $20,000 to $55,000, on average.
Typically, the intended parents will also pay for the surrogate’s medical care, attorney, travel expenses and health insurance, among other costs, which can amount to as much as $100,000 or more. If donor eggs or sperm are needed, the costs rise even more. Donor sperm can cost hundreds of dollars for each vial. Donor eggs are often sold in groups of half a dozen, and priced around $15,000.
According to the Centers for Disease Control and Prevention, gestational surrogates gave birth to 18,400 babies between 1999 and 2013; more than half of those infants were twins, triplets or higher-order multiples.
But it’s unclear how many surrogates carry pregnancies each year in the United States. It appears as though nobody is collecting that data.
A 2016 C.D.C. report found that the number of embryo transfers performed on gestational surrogates nearly tripled from 1,957 in 2007 to 5,521 in 2015. The percentage of transfers using a gestational carrier among all types of carriers also increased during this time period, from 2 percent in 2007 to 4 percent in 2016, the report said.