THE BLOG
06/19/2013 08:46 pm ET Updated Feb 02, 2016

Surrogacy Soapbox

I recently visited New York City. If there is one city I love as much as San Francisco, it's the Big Apple. And no, my infatuation is not just for its restaurants, amazing bakeries, and welcoming gay scene. I love New York for the culture, its effervescence, and the city's progressive stance on today's issues. But I do have one major qualm with the state of New York: its antiquated laws on surrogacy. Exhibit A of an extreme nanny-state "nannyism."

I have clients in San Francisco who are creating their family by way of a gestational surrogate. (Many of my clients are gay men; it's San Francisco.) Thankfully, California's laws regarding surrogacy are strong and positive. California statutes and case law give intended parents, whether or not they are biologically related to the child their surrogate is carrying, the ability to be declared the legal parents prior to the child's birth. This allows both intended parents' names to be listed on the birth certificate even if they are gay men (or women). Gestational surrogacy is legal, and gestational surrogacy contracts are enforceable. Yay, California!

But oy vey, New York! New York is the progressive state in so many ways. At the end of the day, gay marriage is legal in New York, human rights and anti-discrimination laws of all kinds are strong, and same-sex couples can adopt. But when it comes to surrogacy, New York has dropped the ball. New York laws are vague and less-than-friendly.

I do not practice law in New York, nor am I licensed to do so. I do know that "compassionate surrogacy" is completely legal in New York, but if the surrogate receives any compensation, the arrangement becomes illegal. This confines surrogacy to couples who have a really good friend or family member (although I do not recommend opening this can of potential drama) who is willing to act as an oven for nine months, in addition to submitting to all the fertility meds needed before the IVF procedure even takes place -- for free, mind you! Obviously, this is not the common scenario. So why does New York allow gay men to get married but then denies them an increasingly popular way to create a family?

I suppose one argument in support of New York's antiquated law is concern with an industry based upon gestational surrogacy coming to fruition. Perhaps it's not an inane fear, considering the five-month prison sentence that San Diego surrogacy attorney Theresa Erickson received a few years ago after a federal judge convicted her of creating an inventory of unborn babies who ultimately sold for more than $100,000 each. How did she sleep at night?

The Baby M case, which took place in New Jersey in 1988, bred the current surrogacy imbroglio and led to the first court ruling on surrogacy. In that case, the surrogate used her own eggs and IVF to become pregnant with the intended father's sperm. (This "traditional surrogate" model is now rare and obviously discouraged.) The surrogate decided to keep the child, and a custody battle ensued. After several years of legal battles, the surrogate was given visitation rights, and the intended mother and father (the baby's biological father) were awarded custody. The New Jersey Supreme Court subsequently outlawed surrogacy arrangements, and New York did the same.

Sure, we've made progress since 1988, right? Unfortunately, no, we haven't, at least not in New York and New Jersey. Just last year, the New Jersey Supreme Court stripped the intended mother's name from the birth certificate of a child born to a surrogate and conceived by the intended father's sperm and a donated egg. The court ruled that the intended mother had to formally adopt the child.

For now, gay men and heterosexual couples living in New York (and New Jersey and several other states) who choose to use a surrogate to create their family must find a surrogate in a "friendly" state. The costly "project" of creating their family immediately becomes even more expensive thanks to the need to travel across state lines for medical procedures and legal representation. I have two sets of clients now who live in New York, with their surrogate residing here in San Francisco. This is not easy on anyone, but New York's antiquated surrogacy laws leave no choice. Families should not be forced to make the choice between abandoning their desire for genetic parenthood on the one hand and, on the other, traveling to another state and investing even more into the already expensive six-figure (yes, that would be at least $100,000) surrogacy process.

Rights regarding same-sex marriage, same-sex adoption, surrogacy, parentage, and sperm donations are all over the map on a state-by-state basis. California is arguably the most permissive state regarding surrogacy and other methods of non-traditional family formation, but we do not (yet) allow gay marriage. New York is quite the opposite. Consistency would be nice; full legal support for our nontraditional families across all state lines would obviously be optimum.

And now I will step off my soapbox.

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