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Successful Surrogacy in New York: Myth or Reality?

March 5, 2015 | By:

Successful Surrogacy in New York

Myth or Reality?

 Most people think surrogacy is illegal in New York. This is true, in part; but it’s not completely true. I have tried demystifying this topic, but confusion remains despite my best, and repeated efforts.  So let’s try again because there are a lot of people in New York State who need to use a surrogate to build their family and they should know the scoop on surrogacy.  And there are a lot of women interested in carrying a baby for another couple or parent, who would like to be a gestational carrier or surrogate but don’t know what rights they have under NY law (please note I use the terms surrogate and gestational carrier interchangeably except where otherwise noted).

There is no doubt that we, as New Yorkers seeking to build a family and we, as New Yorkers in the family building business, are at a HUGE disadvantage when compared to states like Connecticut and California, or Illinois or Massachusetts where surrogacy is legal and perhaps even governed by statute. But that doesn’t mean we don’t have options. As a prospective or intended parent you can enter into a gestational surrogacy relationship, you just need to know when and how you can do it. As a lawyer or doctor, you can certainly help people have babies through surrogacy, you just need to know what aspects of your role in this family building process are legally proscribed or permissible. (This blog addresses only those aspects of family building through surrogacy for prospective or intended parents or gestational surrogates.)

The three biggest myths surrounding surrogacy in NY are:

Myth Number 1: Surrogacy always is illegal in New York

Myth Number 2: Traditional Surrogacy is illegal in New York

Myth Number 3:  NY will not recognize a surrogacy relationship entered into in another state.

 This blog will debunk the first myth that surrogacy always is illegal in New York.  Subsequent blogs will address traditional surrogacy, another type of surrogacy where the surrogate uses her own egg to help conceive a baby for prospective parents, and what happens when NY courts get involved in enforcing or recognizing gestational carrier arrangements made in other states.

So back to our first myth.  Only certain types of surrogacy are illegal in New York, not all surrogacy. As a NY resident and intended parent you:

(1)  cannot pay another NY resident to carry a child for you; and/or

(2) enter into a contract for that NY resident to carry that baby deliver in NY.

Any contract for a compensated gestational carrier/surrogate who resides in the State of NY and will deliver in the State of NY violates NY law.  The contract itself is illegal and unenforceable and the compensation is illegal.  Drafting the contract and matching the prospective parents with the surrogate also happen to be illegal but that gets us more into the work that attorneys and doctors perform with relation to gestational surrogacy.

A NY prospective parent,  however, can enter into a contract to have someone outside of NY carry a baby for them; and they may compensate that gestational carrier (provided of course she lives and will deliver in a surrogacy friendly state–more on this in a moment). So let’s break it down to what is illegal:

            Paying a gestational carrier in NY to carry and deliver a baby in NY.

            Entering into a contract to pay the gestational carrier in NY to carry and deliver the baby in NY.

      I have oversimplified this a bit, but I think you get the essential points.

No contract, no payment.

Prohibitions aside, if you are a NY intended parent and need to use a surrogate, or you are interested in becoming a gestational surrogate you have very doable options:

You can have a friend or family member act as a gestational carrier for you, or you can carry a baby for a friend or family member, as long as there is no compensation.  This is called “compassionate surrogacy”.  Strange as it may seem, this happens more frequently than you would think and more women are willing to help their friends and family members by acting as “compassionate gestational carriers” than you might expect.  If you are a prospective parent, don’t write-off this option just because you can’t think of anyone who would do this for you.  You might be surprised to find out that your sister-in-law or best friend from college would be willing to carry a baby for you, and expect or want nothing in return.  Some things to conisder about compassionate surrogacy:  Of important note, you cannot have a contract in this type of relationship, but you do need legal documents prepared before the baby is conceived which explain the process and the laws of the State of New York as they apply to compassionate surrogacy.  This legal document, albeit not an enforceable contract, will discuss the parties’ intent to conceive a child through third-party assisted reproduction, explain how the intended parents’ parental rights will be established and when the surrogate’s parental rights (and her husband if she’s married) will be terminated as she will be deemed the child’s birth and legal parent at the time of birth (as will her husband), and how and when a birth certificate will be issued with both intended parents names (assuming there are two intended parents – it could of course just be a single prospective parent).  That’s a quick summary of compassionate surrogacy and NY.

You also can look for gestational carriers in surrogacy friendly states – outside of New York.  In those states you can compensate the gestational carrier (it usually is easier to find a gestational carrier who will be compensated than one who will do this out of love and affection and without compensation), and enter into a binding, enforceable contract. In many of these states you can get a pre-birth order that identifies the prospective or intended parents as the legal parents from birth and relieving (for lack of a better word) the surrogate of any parental rights or obligations she does not want to have.  Other states permit you to obtain a post-birth order that identifies the intended parents as the legal parents for purposes of the issuance of a birth certificate with their names on it. Sometimes, a non-genetic parent (for example, when an egg donor was used, or for same-sex couples where one parent may not be genetically related to the baby) may have to enter into a step-parent adoption when they get back to NY, but that isn’t a huge burden if you have found a wonderful surrogate.

There is no doubt that the laws as they pertain to surrogacy both in and outside of NY are complicated and can be overwhelming, but that doesn’t mean you can’t do this. It is simply a question of who will carry your baby. If you have a friend or family member who is a NY resident and who wants to carry a baby for you, as long as you don’t pay them money to carry the baby it is legal to enter into surrogacy arrangement. If you don’t have a friend or family member willing to carry on a compassionate (uncompensated) basis, then you need to go outside the borders of NY and find a surrogate whom you will compensate.

For more information on surrogacy-friendly states (NY is, of course, not considered surrogacy-friendly because you cannot compensate a gestational surrogate), and for more information on the laws of other states that might help you locate a surrogate check out this website:

http://creativefamilyconnections.com/surrogacy-law-by-state/

 

Nothing in this blog is intended to, nor shall it be considered legal advice.  Nothing herein shall be deemed to create an attorney-client relationship.  The contents of this blog are for informational purposes only.

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Never, Ever Give Up

October 29, 2014 | By:

Today is one of those days where I wish I could make all the hurt and pain go away for one of my clients.  For today, everything seems to be falling apart on their path to parenthood.  The thing is, I cannot count the number of clients I have had who have been in similar situations — afraid that they had run out of options or run out of money — and we found a way, they perservered for another day and then another day after that until I got the glorious news that they finally had a baby on the way (whether through egg donation, surrogacy or adoption).

With everyone of those clients I refused to give up, I refused to let them give up.  Because I have seen so, so many of those “never gonna happen to me/us” situations have a happy ending.

More to the point, I have spoken with so many of those parents who, in the end, were grateful for all the mishaps, all the donors who changed their mind or were screened-out, the changing of surrogates after two failed embryo transfers with only one embryo left . . . whatever the situation was (and there are so many I am not even going to begin to try and describe them all–you know how hard this can be), every single time when I got the call to tell me the joyous news, my client express grattitude for all the mishaps.  GRATTITUDE.  Because but for those mishaps, they wouldn’t be holding THIS baby, at this moment, and they couldn’t imagine not having THIS baby.

This happened to me too.  Had one of our adoptions not been disrupted (as in the baby went back to its birth mother after placement), I wouldn’t have the family I have today.  I loved that baby but I love THIS family more.

Whatever happens on your path, whenever you have a crappy-puts-you-over-the-edge-you-can’t-take-it-anymore-this-is-never-going-to-happen-for-me kind of day, remember that tomorrow is a new day with a new opportunity.  That there are more options and more choices, you just have to keep looking and putting one foot in front of the other.  It may suck today but one day, it might all actually make sense.  At the very least, one day you will know that but for all that came before, you wouldn’t be holding THIS baby.

So this my advice for today:

Never, Ever Give Up.  At least that’s what the sign above my desk says, and I believe it says it all.

(I like this necklace too)

never ever give up hope

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The Risk of Choosing The Mindset of Infertility

October 24, 2014 | By:

I’m back (after a blogging break) and I’m mad.  Very mad.  I am mad at doctors, mad at the media, mad at the reproductive community, mad, mad, mad!  Why am I mad you ask?

Good Question.

It took me awhile to figure it out, which makes me even . . . madder!  Okay I know that’s not a real word but you get my point . . . I think it’s been building up inside me for . . . oh about 15 years.  Because 15 years ago (give or take a few years) I was officially LABELLED as INFERTILE.  It is not a nice label.  It is not a label anyone ever wants.  And yet there it is.  A LABEL in my medical chart.

It’s like having a huge tattoo on my forehead that screams to doctors and the world:

INFERTILE:  WILL NEED HIGH-TECH EXPENSIVE MEDICAL TREATMENT TO EVER HAVE A CHANCE TO CONCEIVE AND CARRY A CHILD.

This is a label which makes your doctor look at you differently.  A label which makes YOU look at YOU differently. A label which makes you look at your partner differently, and makes your partner look at you differently.

The LABEL stuck with me for over 15 years.  And indeed, after years of IVF those labels became so convincing to everyone, and I mean everyone, that no one believed there was any hope for me.  It was like getting put into a closed box which doctors didn’t even want to try to open.

I listened to doctors, and nurses, and even friends, as they recounted the statistical UNlikelihood that I would conceive and carry a baby, as the statistics of the likelihood of what I wanted more than anything, became smaller and smaller, and smaller.  I let them convince me it was impossible.

The list of reasons they gave me was huge.  Insurmountably huge. And so I believed them when they told me I wouldn’t conceive.  I believed them when they gave me diagnosis after diagnosis.  I didn’t question their opinions or their conclusions.  I didn’t challenge my own belief in the power of my mind, the power of my body, the power of ME!

I BOUGHT IT ALL HOOK LINE AND SINKER!

And that’s why I am mad.

I let them compartmentalize me.

I let them put me in a box with a label and give up on me.

I let ME give up on ME.

Today there are countless ways to build a family.  IUI, IVF, IVF with donor egg, IVF with donor sperm, IVF with egg and sperm donor, embryo donation, gestational surrogacy (with any of the aforementioned IVF combinations), traditional surrogacy, domestic newborn adoption, foster-care adoption, international adoption; and there are more options than what I have mentioned.  It is a colorful and beautiful world filled with reproductive and family building options.  I live and breathe it every day as I help others move toward their dream of building a family.  But I couldn’t see any of it for myself.  All I could see was that tattoo staring back at me in my bathroom mirror every morning.

INFERTILE  

I read when magazines and newspapers attributed the label to countless celebrities, the media’s whispered words of shame and failure . . . [insert celebrity name here] can’t get pregnant] . . . she’s INFERTILE.  But I didn’t believe it for them.  I believed they would (or will) prove the label was wrong.  Prove the media was wrong.  I believed that others could defy that label which defined me.

INFERTILE 

God I hate that word.  I hate the feelings it brings out in me.  Feelings of failure, sadness, desperation, and now anger.  But I am not angry that I am infertile.  I am angry that I gave up on myself.  But then something happened.  Something that wasn’t supposed to happen . . . not to me, not to someone with all those LABELS.  Something extraordinary happened that caused me to challenge my doctors’ assumptions, that caused me to look at the LABEL tattooed on my forehead and ask:

IS IT REALLY TRUE?

AM I REALLY INFERTILE?

And then I realized it isn’t impossible.  Nothing is impossible.  In fact everything is POSSIBLE.  And with that realization my entire world changed.  My longheld beliefs about myself and my infertility CHANGED.  Everything I feel and believe about what I have lived through for well over 15 years, what I tell my clients, how I look at the community and industry in which I work, has shifted.  I suffered for over 15 years for no reason.  There was always hope.  I just wouldn’t let myself see it.  But I see it now.  I see HOPE everywhere, for everyone, even for ME.  No one really knows who is infertile.  Not even your doctor.  Nothing anyone tells you has to be true.  Not unless you believe it’s true.

My point is this:

Do NOT let your doctor get you down.

Do NOT let your doctor dismiss you.

Do NOT buy into the label(s).

Do NOT believe statistics.

PLEASE DO NOT BELIEVE STATISTICS.

I have finally realized that everything and anything is possible.  Because it is.

ANYTHING AND EVERYTHING IS POSSIBLE!

It will happen to you in the perfect time, and in the perfect way.  But you do not have to suffer while you wait. Do not do what I did.  Do not buy into the labels.  Do not give up or give in.

Instead of choosing the mindset of infertility, choose the mindset of belief.  Choose the mindset of knowing that your time will come.  Accept, believe, and KNOW that everything and anything . . . and I mean ANYTHING . . . is POSSIBLE.

Because it IS.

And I know this because after 15 years of living with the label, and living with the tattoo on my forehead, something happened which proved everyone wrong about everything.  I now know that

I AM NOT INFERTILE

I am

POWERFUL

My body is 

POWERFUL

and so is

YOURS!

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