New York’s legalization of compensated gestational surrogacy five years ago has significantly altered the landscape for aspiring parents, but the journey remains emotionally and financially taxing, with lingering legal and societal hurdles.
Prior to the passage of the Child-Parent Security Act (CPSA) on February 15, 2021, compensated surrogacy was illegal in New York. Couples seeking to use a surrogate often had to engage with carriers in states with more favorable laws, adding substantial cost and logistical complexity to an already challenging process. Ashley and John Russ, who struggled with infertility for years, found this to be the case. After multiple rounds of IVF yielded only one viable embryo, Ashley, then 38, explored surrogacy. The legal restrictions in New York meant they would have to find a surrogate in another state and travel extensively, a prospect Ashley found overwhelming given her physical and emotional exhaustion from fertility treatments.
The CPSA allowed for both compensated and uncompensated gestational surrogacy in New York, making the process more accessible within the state. The law requires specialized licensing for surrogacy agencies and establishes a bill of rights for gestational carriers, ensuring they are protected. While intended parents are not mandated to use an agency, independent arrangements must still comply with the CPSA. A key provision requires intended parents to cover the surrogate’s insurance for a full year post-birth, an added financial burden.
For the Russ family, the legalization paved the way for them to have their son, Chandler. They connected with a surrogate, whom they affectionately call “Angel Barb,” through a mutual friend, a process facilitated by the New York Surrogacy Center. Their journey, however, underscored the significant financial investment, with total costs for a New York surrogacy often ranging from $150,000 to $175,000, excluding fertility clinic expenses which can add another $5,000 to $50,000.
Surrogates typically earn between $50,000 and $90,000, with specific criteria to qualify, including age (21-45), a history of at least one healthy full-term pregnancy, and a stable home environment. The American Society for Reproductive Medicine provides guidelines on health and delivery history.
Despite the increased accessibility, complex ethical and legal dilemmas can still arise, as highlighted by the case of McKenna West. West, a surrogate from Alaska, is currently in legal proceedings after refusing to terminate a pregnancy carrying a couple’s child, following a diagnosis of a severe heart defect in the fetus. This situation, which occurred in Texas, where West flew to establish birth-mother status under state law, contrasts with New York’s legal framework. In New York, the surrogate retains the ultimate decision-making power regarding termination, a point surrogacy professionals emphasize is thoroughly discussed and aligned upon before the process begins.
The societal perception of surrogacy also continues to evolve. Some individuals still face confusion or judgment. Ashley Russ recounted an instance where an insurance representative initially misunderstood the nature of her son's birth, suggesting a relationship beyond that of intended parent and surrogate. Similarly, Portia Zwicker, an early compensated surrogate in New York, faced backlash on social media for sharing her experience, with some comments drawing comparisons to dystopian narratives.
For couples like Mike Dlugosz and his husband, RJ, the legalization of surrogacy in New York was a pivotal moment that allowed them to become parents. They had previously considered surrogates in other states but found the inability to be fully involved in every step of the process prohibitive. The CPSA enabled them to have their children, Ava and Gavin, born via donor eggs and Dlugosz’s sperm, fulfilling their long-held desire for fatherhood.
While New York is now considered a benchmark for surrogacy laws, with other states looking to its statutes for guidance, the journey for all parties involved remains intricate. The U.S. surrogacy market is estimated to be worth between $5 billion and $12 billion, reflecting its significant role in modern family building, yet it continues to present challenges requiring careful navigation of legal, financial, and emotional considerations.