Outdated surrogacy laws in NY and other states

I am so happy to learn that NY State Senator Brad Hoylman and Assemblywoman Amy Paulin are co-sponsoring a bill to make surrogacy a real option in the state of NY.  They held a public forum in Albany on March 3, 2014 to discuss the proposed law and the possibilities it offers for surrogacy in NY state.  Both Hoylman and Paulin have personal experience with the need for this law and understand the reality of infertility.  A New York Times Fashion and Style section on February 19, 2014 featured Hoylman’s story and experience with surrogacy (And Surrogacy Makes 3).

When my husband and I started our surrogacy process, we were surprised to learn NY state laws did not recognize surrogacy, as it is practiced today, and we were facing yet another hurdle to the numerous existing ones to becoming parents.If we were to do this, we had to look to other states, where surrogacy is recognized, the contracts are enforceable, compensation is permitted, and parental rights would be in our favor.

Surrogacy is a simple need with a very sophisticated arrangement.

Currently, in New York, a woman can legally carry your baby for you, but it is against the law to compensate her and, when in doubt, the law will recognize the woman who carries the baby as the rightful, legal parent, regardless of genetic link.  Under this law, if your worst surrogacy nightmare comes true, and the carrier wants to keep your biological child after birth, you most likely have no recourse.  And if you secretly or indirectly agreed on compensation in return for carrying your child, you can’t exactly take this person to court, because then you’re actually facing charges for breaking the law by offering compensation in the first place.  So unless you have a sister or a girlfriend, who you trust completely and have no doubt as to what she will do after delivery; unless you personally know a woman who selflessly has the generosity of heart, mind, and body to carry your child, without anything in return, you have to look outside of NY.

These older surrogacy laws reflect the famous 80s case in which a woman agreed to carry a baby for another couple, using her eggs and the intended father’s sperm.  In this case, the woman was unable to give up her biological child after birth.  The ensuing battle resulted in the ruling and resulting laws, which gave a woman who carries a baby the right to change her mind and keep her parental rights.  This is similar to a woman who is planning to give up their child for adoption but may change her mind after delivery.  And rightfully so.

Surrogacy is different today.  It is no longer advisable (nor do I believe it is practiced) that the woman who carries the baby would also use her own egg.  While I don’t dismiss the very real emotional and physical attachment a woman may experience for the baby she carries, by removing the genetic link to the baby from the equation, surrogacy now offers its original intended purpose: carrying a baby for infertile couples.

Some clarification on terminology. While the term “surrogacy” is used loosely and generally, the technical term is now “third party carrier”.  A woman who you work with to carry your baby is the GC, i.e. “gestational carrier”.  The individual or couple that pursues this route to have children are IPs, i.e. “intended parents”.  An embryo is created via IVF using the IPs genetic material, which is then transferred into the “third party”, the GC or surrogate.  In some cases, a donor egg or sperm is also used, separate from the GC.

I know all this sounds rather cold to an outsider, as it does for those of us who first are introduced to the process.  However, I can personally share that once you start this process, the words only provide us language to communicate under a very unique and uncommon relationship, and the reality is anything but cold and mechanical, but instead amazing and miraculous.

While terminology and medicine has changed, not all states have caught up, and this affected us personally.

The closest states to NY, where we could enter a surrogacy arrangement and maintain our parental rights are Connecticut and Pennsylvania.  Unfortunately, since there are a lot of IPs waiting to match closer to NYC, the waiting time to match with a candidate gets longer.  Since the average time to match with someone is typically 6-12 weeks, we decided to go ahead and open up our options to include other states.  This meant adding to our budget with travel costs, being further away during the pregnancy, and limiting our ability to participate throughout.

Once again, in our journey and life as Infertiles, we found ourselves facing new obstacles just as we begun to feel some level of hope.  It would have to be even harder than it already was.  And if you’re the fortunate few who can financially embark on this path, then there’s no option but to just forge ahead.

What does it mean to have your GC in another state?  You are far away from your baby and from this amazing stranger who is carrying her or him for you.  You risk missing the delivery.  Not all of us have the luxury of time and money needed to visit often and attend doctor appointments.  Many GCs are in remote areas, where airfares are not going to be the most reasonable, regardless of season or peak hours.  There are usually fewer flights going to these areas.

Logistics complicate.

While we did go to the visit the GC and her family before finalizing our match, we would have loved to attend some of the doctor’s appointments with the GC or simply be more available for any help had she needed anything.  We joined doctor’s appointments via calls or Skype, which were not always reliable as signals were harder in the doctor’s office.  We often missed appointments because of delays at the doctor’s office, coordinating schedules, and time difference.  The GC had to travel to NY to visit our clinic twice, once for a screening process and once for the embryo transfer, which includes airfare, hotels, car, etc, for herself and a companion.  In the meantime, she has to leave behind her children, relying on caregivers.  Of course the IPs pick up these costs of her travel and child care, but it is an additional demand on the GC.

Of course, you hope that the arrival of your baby is on or around the due date.  Arrangements are needed for room and board and car rentals, and airfare to and from, for unpredictable time periods.  You want to make sure you get there well in advance or risk missing the delivery of your own child entirely.  Do you buy in advance, lower non-refundable fares, or full fare last minute, assuming you can get a flight as quickly as possible on the day you need it?  You negotiate with your employer the time off before the delivery and risk cutting into the time off needed after the delivery.

Being so far away from home can overwhelm you with fears and anxiety of missing your baby’s delivery, complications for the GC or baby, being away from home and family/friend support, traveling with newborns only a few days old, getting on a plane with them, not having enough time to be with the GC and her family post-delivery should she like it or need something.

Emotional, physical, and financial costs add up quickly.

Average cost of surrogacy seems to be between $70,000 to $130,000, from various numbers we were quoted.  It’s hard to regret any of the money spent during surrogacy now that we have two beautiful babies, but cost is a reality and travel can add upwards of $10,000, depending on how frequently you choose to visit the carrier and how long you have to stay before and after delivery.  First, usually IPs have already spent thousands of dollars on fertility treatments, sometimes up to $200,000, especially for those who don’t have insurance or where insurance caps out.  Second, if the surrogacy doesn’t work, you are now adding to the many losses IPs have already faced.  Third, sometimes, GCs don’t pass screening after traveling to and from your clinic (near you) and you have to try again with a new person.  For many, these costs make surrogacy a less attainable option, if not impossible.  Many, like us, forgo visiting the GC during the pregnancy and travel only for the delivery.  Alternatively, I would argue, these same travel funds or at least portions of it could be directed to support the GC and her family in other ways.

Financial costs aside, changing laws is ultimately about increasing access to family planning options and eliminating hurdles for those who can’t have children without additional help.

Surrogacy today is contract between two consenting parties.  Amazing women seek out to be a surrogacy, take their role very seriously, and do not enter into the relationship with the intention of having another child for herself.  Instead, she has applied the role and chosen the couple she wants to help, and is very clear about who the parents of the baby is, during and after the pregnancy.  In turn, IPs are grateful, want to compensate, and give what they can.

It’s that simple.

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