A law to legalize commercial surrogacy took effect in New York on February 15, 2021. This change is the culmination of decades of advocacy to overturn a criminal ban enacted in the wake of the In re Baby M (1988), the first case to consider the legality of surrogacy arrangements. In that case, the New Jersey Supreme Court held that a surrogacy contract is void and unenforceable. It denounced the practice as akin to baby-selling and left an anti-surrogacy legacy that is still detectable. Neighboring New York sprung to action before a similar case reached its own courts; the legislature enacted a law criminalizing surrogacy in 1992. Now, almost thirty years later, New York has authorized paid surrogacy, as long as certain requirements are satisfied.
The world has changed dramatically since the early 1990s, when in vitro fertilization was in its infancy, and few legislatures or courts had grappled with the legal issues arising from the social and technological changes that would increasingly divorce reproduction both from marriage and from sex. The law of surrogacy, in particular, has undergone vast changes from that early denunciation in Baby M to widespread, though not universal, authorization across the states. Although New York was not the lone holdout, it was increasingly an outlier as the general approach to surrogacy shifted in favor of authorization-and-regulation rather than prohibition.
The Practice of Surrogacy: Then and Now
Surrogacy is an arrangement in which a woman carries a baby with the pre-conception intent that someone else will serve as the baby’s parent. Surrogacy has ancient roots—the Old Testament story of Abraham’s wife, Sarah, who “gave” her handmaid, Hagar, to her husband to bear them a child (Ishmael) is one example. Surrogacy that occurs quietly, privately, and amicably is not usually controversial. The controversy ensues when someone acting as a surrogate and the intended parents have a conflict and seek judicial intervention with respect to the contract designed to govern the relationship—either seeking to enforce it or seeking to have it declared void.
In its modern form, surrogacy began as an option for infertile married couples who desired a child with a genetic tie to at least one parent. So-called traditional surrogacy involved insemination of a surrogate with the intended father’s sperm; the surrogate provided both the egg and the womb. Today, this is sometimes referred to as “genetic surrogacy” to indicate the surrogate’s genetic tie to the child.
The typical contract provided that the surrogate agreed to be inseminated, to take various steps to maximize the chance of giving birth to a healthy child, and to relinquish the child shortly after birth. The intended parents agreed to pay for the surrogate’s time and service, as well as for expenses like medical care. They also agreed to assume parental status upon relinquishment, with all the obligations as well as the rights that come with it. This type of surrogacy differs from adoption primarily because of the pre-conception agreement regarding the transfer of parental rights and the lack of safeguards that accompany adoption, such as a waiting period after birth before parental rights can be surrendered and a period during which the mother can change her mind. With surrogacy, the pregnancy only occurs because of the agreement to conceive and carry a child.
Today, however, the dominant arrangement involves “gestational surrogacy,” in which a woman conceives a child, using in vitro fertilization, with gametes provided by either the intended parents or donors. Surrogacy can be used in a variety of situations but is most commonly employed by couples with female-factor infertility or, in increasing numbers, gay men seeking to have children either alone or as part of a two-male couple.
Baby M and the Development of Surrogacy Law
Like many other non-traditional methods of family formation, surrogacy has become both more common and more accepted. Scientific advances have made gamete donation more reliable and in vitro fertilization more successful. More importantly, though, is that social norms have evolved to embrace a variety of practices that involve reproductive technology and for which more than two adults play a role in the conception, birth, and parenting of a child. The law has evolved as well, in fits and starts, to adapt the rules of parentage. But despite all these changes, surrogacy remains somewhat controversial.
Baby M was the first surrogacy case to garner national attention. In that case, Mary Beth Whitehead conceived a child through traditional surrogacy for William Stern, who provided the sperm, and his wife, Elizabeth, who believed (perhaps incorrectly) that she had multiple sclerosis and would not be able to safely carry a child. Pursuant to a written surrogacy agreement, the Sterns agreed to pay $10,000 to Mary Beth who, in return, agreed to relinquish custody and parental rights after delivery. The Sterns also paid $7,500 to a broker who handled the legal and technical aspects of the arrangement.
After “Baby M” was born, the arrangement went seriously sideways. Mary Beth relinquished the baby initially, but then begged for a temporary visit, during which she took the baby and left the state. She and her husband moved with the baby from hotel to hotel in Florida for three months, while trying to evade both the Sterns and law enforcement. Several of the conversations between Mary Beth and William were recorded, and they reveal an escalating fight that included Mary Beth’s threatening to commit suicide, to kill the child, and to falsely accuse William of child molestation.
The trial court had to determine whether the surrogacy contract was valid and enforceable under New Jersey law. If not, Mary Beth was the child’s legal mother, and William Stern her father. If it was enforceable, then Mary Beth had no claim to the child and would have to return her to the Sterns.
After a lengthy trial, the court issued a 121-page opinion in favor of the Sterns. The judge concluded that the surrogacy agreement was enforceable, and that the Sterns were the legal parents of Baby M; Mary Beth’s parental rights were to be terminated.
But the New Jersey Supreme Court reversed that ruling, holding, in 1988, that William Stern was Baby M’s legal father, but that Mary Beth Whitehead—not Elizabeth Stern—was her legal mother. On remand, the case became a custody case, which was governed by the more typical “best interest of the child” test. William was awarded full custody, so he and Elizabeth ultimately served as Baby M’s functional parents, and Mary Beth received only visitation rights.
In the course of ruling in favor of Mary Beth Whitehead, the New Jersey Supreme Court concluded broadly that surrogacy contracts are “illegal and unenforceable.” The court saw danger for everyone involved if the contracts were to be upheld:
The long-term effects of surrogacy contracts are not known, but feared—the impact on the child who learns her life was bought, that she is the offspring of someone who gave birth to her only to obtain money; the impact on the natural mother as the full weight of her isolation is felt along with the full reality of the sale of her body and her child; the impact on the natural father and adoptive mother once they realize the consequences of their conduct.
Baby M was the subject of tremendous, and contentious, public debate. As law professor Carol Sanger observed, the case “provoked philosophical debate, political organizing, and legislative action as ethicists, feminists, theologians, lawmakers, and local men and women weighed in on surrogacy’s moral, legal, and practical significance.” It had an outsized impact on the development of surrogacy law because it was the first ruling. When courts and legislatures looked for precedent or guidance, they found New Jersey’s strong denunciation of the practice of surrogacy.
Surrogacy Law in New York
The Baby M ruling triggered action across the country, but nowhere more rapidly and definitively than its neighbor across the Hudson River. Although the New York legislature considered a bill to permit surrogacy subject to certain restrictions, it settled on a 1992 bill providing that paid surrogacy agreements are unenforceable. It also made it a crime to facilitate any type of compensated surrogacy arrangement. California, meanwhile, ended up at the opposite end of the spectrum. Its highest court enforced a surrogacy agreement in a 1993 case, Johnson v. Calvert, ruling that the intended parents of a child were the legal parents, and the surrogate was not. This meant that surrogacy was legal and subject to no special rules or restrictions. Decades later, the California legislature codified its support for surrogacy but imposed some requirements in order for a surrogacy contract to be valid and enforceable. And in the decades since Baby M, as many as ten states have adopted statutes that expressly allow surrogacy but regulate it. Only a few states continue to ban it, but the validity of surrogacy agreements in many cases is questionable given the lack of relevant statutes or court rulings. (A useful map of surrogacy laws can be found here.)
Beginning about a decade ago, advocates began to introduce bills to repeal New York’s surrogacy ban. None passed until April 2020, when the legislature passed the Child-Parent Security Act, a law designed to modernize New York’s parentage laws, which had grown increasingly out of step with those in other states. One of the effects of this bill is to overturn the longstanding ban on paid surrogacy and to replace it with a scheme that continues to prohibit traditional or genetic surrogacy but permits gestational surrogacy as long as a litany of requirements are followed. The rules are arguably the strictest in the nation, but this change will permit people to enter into surrogacy arrangements without the legal uncertainty they used to face.
In order for a surrogacy agreement to be valid under the new law, the person acting as the surrogate cannot provide the egg. In other words, only gestational surrogacy is permitted. Moreover, the conception cannot occur through sexual intercourse; it must be done with assisted reproductive technology. The surrogate must be at least 21 years old and be either a U.S. citizen or lawful permanent resident. Either the surrogate or one of the intended parents must be have been a resident of New York for at least six months prior to execution of the agreement.
The law also spells out several steps that must be taken before an agreement can be executed. The person acting as a surrogate must undergo a complete medical evaluation and must give informed consent after disclosure of all relevant physical and psychological risks. The surrogate must be covered by a comprehensive insurance policy that covers her from the beginning of any medication or procedures in connection with the conception and continues through twelve months after the pregnancy results in childbirth or is otherwise terminated. The intended parents must pay for the insurance policy. They must also pay for a life insurance policy to cover the person acting as the surrogate; the policy must be for at least $750,000 unless the surrogate only qualifies for a lesser amount. Both the surrogate and the intended parents must be represented by independent counsel.
The law provides that at least one of the intended parents must be a U.S. citizen or lawful permanent resident. If an intended parent is married, both spouses must be parties to the agreement unless they are legally separated or have been living apart for at least three years. If the surrogate is married, her spouse must also be a party to the contract and must agree to relinquish parental rights immediately after birth.
The agreement itself must meet several requirements in order to be enforceable. It must be signed by all parties in front of two witnesses. It must be inked before any steps are taken to prepare for conception. If the contract calls for compensation, the full amount must be placed in escrow to ensure the funds are available to be paid to the surrogate when due. The agreement must specify how the medical and life insurance costs will be paid. The agreement must also address several measures designed to protect the surrogate from exploitation and from unjust intervention in her medical care by the intended parents. All parties must acknowledge that they have received a copy of the Surrogate’s Bill of Rights. The agreement must state that the surrogate has the right to make all health and welfare decisions for themselves including whether to have a c-section, or multiple embryo transfer; whether to terminate or continue the pregnancy; whether to reduce or retain the number of embryos. The agreement must spell out that the surrogate has the right to obtain counseling at the intended parents’ expense, and she also has the option of taking out a disability insurance policy at their expense. The agreement must also provide that the surrogate gets to choose her own medical providers.
The crux of a surrogacy agreement relates to parental rights: the intended parents are the child’s parents, and neither the surrogate nor her spouse (if she has one) are the child’s parents. Under this new law, the agreement must provide that the surrogate agrees to undergo an embryo transfer and to attempt to carry and give birth to the child. She must also agree to surrender custody of all resulting children to the intended parents immediately upon birth. The intended parents must agree to accept custody of all resulting children regardless of number, gender, or mental or physical condition and regardless of whether intended embryos were transferred by laboratory error. The intended parents must execute a will even before the embryo transfer that designates a guardian for any resulting children and authorizes the executor of their estates to carry out the obligations under the surrogacy agreements.
The law permits the surrogate to be paid reasonable compensation for the physical discomfort, inconvenience, and responsibilities undertaken. The contract cannot provide that the payment is for the “purchase” of gametes or the “transfer” of parental rights. Moreover, the compensation cannot be conditioned upon the quality or genetic traits of the gametes, nor on the genotypic or phenotypic characteristics of the donor or any resulting children. Before conception, either party can terminate the agreement by providing notice to the other party. The intended parents are responsible for any reimbursable expenses, but not the full promised amount.
If the surrogacy contract does not meet the requirements spelled out in the new law, the court is directed to determine parentage based on the intent of the parties, taking into account the best interests of the child. The law specifies that the lack of the child’s genetic tie to the intended parents is not a sufficient basis for denying parentage.
If individuals proceed with a surrogacy arrangement but do not enter into a written contract, the law makes clear that the regular parentage rules apply. In other words, the person who serves as a surrogate—and gives birth to a child—is the legal mother. The legal father may be her husband based on the marital presumption—or possibly the intended father if he provided the sperm for conception.
In broad brush, the New York rules are designed to permit surrogacy while guarding against the most common types of conflicts and minimizing the most likely harms. It anticipates disputes over prenatal care, the possibility that one party might try to walk away because of unreasonable disappointments, and the fact that pregnancy is uncertain and sometimes dangerous. Although there is no perfect way to balance the risks and expectations in such a complicated arrangement, New York has taken seriously the role of law in protecting people from harm and facilitating their autonomy.