I woke up in England this morning preparing to give the second of two Marshall Lectures, in which I'll talk about kidney exchange, and repugnant transactions. What better to see in the NY Times then the story about a same sex married couple in NY that had a child via gestational surrogacy in California, because it's illegal in NY. But one of the husbands is a NY State Senator who is introducing legislation in the hope of changing that.
And Surrogacy Makes 3: In New York, a Push for Compensated Surrogacy
By ANEMONA HARTOCOLLIS FEB. 19, 2014
"They had their baby in California because if they had had her in New York, they would have been breaking a 1992 New York law that bars commercial surrogacy contracts and equates them with baby-selling — a legacy of the notorious Baby M case of the 1980s.*
"Now Mr. Hoylman, as a novice state senator, is in a position to do something about it. He is the co-sponsor of a proposed law that would overturn the current law and make compensated surrogacy legal in New York State.
"Surrogate baby-making has long been a path taken by the affluent and celebrities, partly because it takes good legal advice and money to accomplish. But in recent years, it has been growing among gay men, who in a fundamentally conservative embrace of family values, see having children and building a family as the logical next step after getting married.
“Not to be cliché, but you know how the phrase goes — first comes love, then comes marriage, then comes the baby and the baby carriage,” said Allison Steinberg, a spokeswoman for the Empire State Pride Agenda, which has endorsed the bill.
The bill’s supporters argue that it makes no sense for New York, which has a large number of fertility clinics, not to mention a flourishing gay community, not to be able to offer commercial surrogacy to those who want it. And they say that making surrogacy more widely available could reduce the exorbitant costs, easily as much as $100,000 per baby."
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*"The Baby M case, in which Mary Beth Whitehead, left with her husband, Richard, refused to give up custody of a baby girl she agreed to bear for a New Jersey couple, led to a New York law prohibiting paid surrogacy."
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"Surrogate births are a small but growing part of the in vitro fertilization industry. Conservatively, about 1,600 babies a year in the United States are born through gestational surrogacy (which now accounts for almost all surrogacies), more than double the number in 2004, according to the American Society for Reproductive Medicine.
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"But driven by the law of supply and demand, a first-time egg donor could be paid $8,000 to $10,000, and a first-time surrogate $30,000 and up, bringing the cost of a no-frills contract to $75,000 to $120,000 with medical, legal and agency fees.
“You basically have to take out a loan to have a child,” Mr. Hoylman said.
"Agencies prefer to contract with surrogates who are married with children, because they have a proven ability to have a healthy baby and are less likely to have second thoughts about giving up the child.
"Conversely, gay couples are popular among surrogates. “Most of my surrogates want same-sex couples,” said Darlene Pinkerton, the owner of A Perfect Match, the agency in San Diego that Mr. Hoylman used. Women unable to become pregnant often go through feelings of jealousy and loss, she said. But with gay men, that is not part of the dynamic, so “the experience is really positive for the surrogate.”
"Or as her husband, Tom, a third-party reproductive lawyer, put it, “Imagine instead of just having one husband doting on you, you have three guys now sending you flowers.”
"New York has one of the harshest surrogacy laws in the country, along with Arizona, Indiana, Michigan, Nebraska and the District of Columbia.
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"It is legal in New York for a volunteer to carry a baby without pay, known as altruistic or compassionate surrogacy. And New Yorkers find ways around the law by shipping frozen embryos to clinics in nearby surrogacy-friendly states — Connecticut, Maryland, Pennsylvania, Massachusetts — for implantation. In New Jersey, paid surrogacy is still considered risky because of case law going back to Baby M. In 2012, Gov. Chris Christie vetoed a law that would have permitted some types of payment, saying he wanted more discussion of such “profound change in the traditional beginnings of a family.”
"Historically, the legal aversion to surrogacy stems from a sort of Margaret Atwood, “Handmaid’s Tale” fear that it lends itself to unnatural social engineering and the subjugation of women. This led to an unusual alliance of feminists, civil libertarians and the Catholic church in the early 1990s, when the New York Catholic Conference joined with the New York Civil Liberties Union and the National Organization for Women to oppose surrogacy.
"The Baby M case led to a pioneering court ruling on the validity of a surrogate-mother contract, and its outcome had a strong impact on New York because it played out across the river in New Jersey. Mary Beth Whitehead was a young homemaker with two children, in a rocky marriage to a sanitation worker, when she agreed in 1985 to have another man’s baby for $10,000.
"Soon after giving birth, she took the baby to Florida and renounced her fee, saying she wanted to keep the child.
"On appeal, the New Jersey Supreme Court restored her parental rights while leaving custody of Baby M with her biological father and his wife. “This is the sale of a child, or at the very least, the sale of a mother’s right to her child, the only mitigating factor being that one of the purchasers is the father,” the high court said.
"“So much has changed since Baby M,” said Sonia Ossorio, president of the New York City chapter of the National Organization for Women.
For one thing, Ms. Whitehead was artificially inseminated using her own egg and the prospective father’s sperm, a process now disdained as “traditional” surrogacy. Today, the pregnancy would involve a third-party egg, so the surrogate would not be genetically related to the baby.
The new technology has given rise to a whole new language — gestational carrier, instead of surrogate mother, “intended parents,” “collaborative reproduction.”
Gay rights around the world
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