Markets 
Surrogacy was once viewed as an expensive, last-resort option for families desperate to have children but unable to, often glamourized by celebrities — Kim and Khloé Kardashian, Andy Cohen, Anderson Cooper, and Jimmy Fallon all used surrogates.
It’s an emotionally and financially draining — and often complex — journey, as demonstrated with the recent headline-making McKenna West news: the surrogate from Alaska who refused to terminate the pregnancy of the couple whose baby she was carrying and is currently in court because of it.
Today, surrogacy is legal in 48 states and the District of Columbia (still illegal in Louisiana and Nebraska), with New York being one of the last states to legalize it a mere five years ago.
Prior to its legalization, NY couples like Ashley and John Russ, desperate for kids, faced many uphill battles trying to complete their families — and continue to do so.
When the couple decided to have a baby five years ago, they figured they would try and let nature take its course.
But much to their disappointment, nature didn’t do its job.
When she turned 38, Ashley went to a fertility clinic near her home outside Rochester, NY, where she learned that her egg count and quality were low, and her fallopian tubes were blocked.
She wasn’t even a candidate for intrauterine insemination (IUI), during which sperm are placed directly into the uterus around the time of ovulation.
The couple tried IVF; three rounds later, they only had one viable embryo. The devastating news was like a sucker punch.
“That was our one chance of having a child who was genetically both of ours,” Ashley, 43, a consultant for a healthcare solutions company, told The Post.
She felt hopeless. She wanted to carry the baby herself, but more than that, she wanted the baby to be genetically hers.
Since the then-38-year-old ran the risk of miscarrying, her last resort was finding a gestational surrogate to carry the baby for her.
Unlike traditional surrogacy, where the surrogate uses her own egg, with gestational surrogacy the carrier has no genetic tie to the baby. The surrogate is simply carrying an embryo made via IVF using an intended parent or donor egg.
But there was another hurdle — paid surrogacy was illegal in her home state.
“You needed to have a sister, a cousin, a family member or a best friend willing to do it for you out of the goodness of their heart,” Ashley explained.
But anyone who helped broker a paid surrogacy agreement in New York risked getting hit with $50,000 in fines and five years in prison, according to the Center for American Progress.
Parties entering into the contract itself faced only civil penalties (fines up to $500), not criminal jail time, and the surrogate’s participation could not be used against her in custody disputes.
Advocates introduced the Child-Parent Security Act (CPSA) in the New York State Legislature in 2012. But for eight years, it faced serious pushback.
“Some clinics would offer surrogacy as an option to their patient base and intended parents would work with the clinic, but the surrogate could never reside in the state of New York,” Nazca Fontes, founder and executive chairman of the surrogacy agency ConceivAbilities, explained to The Post.
“So they had to engage with a surrogate that lived in a state that was favorable towards surrogacy.”
The Russ’s could have gone this route. But Ashley was emotionally and physically exhausted from undergoing IVF, and was in no headspace to travel — plus it adds cost to an already wildly expensive process.
“Even the smallest logistics are magnified times ten when you’re already in this cloudy haze of IVF drugs,” she admitted. “I would have had to choose an agency that had a surrogate that lived in a surrogate-friendly state. I would have had to go to her state for everything. I would have had to travel to doctors’ appointments and stayed in an Airbnb at least two weeks after the baby is born. I don’t know if I could have done it.”
Finally, on February 15, 2021, compensated and uncompensated gestational surrogacy became legal in New York with the passing of the CPSA.
For the first time in years, Ashley felt hopeful.
She immediately called a few surrogacy agencies, ultimately settling on the New York Surrogacy Center, the first surrogacy program in New York to receive its license.
Agencies typically match intended families with surrogates.
But in a weird twist of fate, Ashley accidentally found her own surrogate. Through a mutual friend, she met a woman named Barb, with whom she felt an immediate connection and who coincidentally was a surrogate.
The new friends hit it off over coffee, leading Barb to offer to carry for Ashley, which the NY Surrogacy Center allowed and helped reduce the overall cost.
“We call her Angel Barb,” said Ashley.
Nine months and over $100,000 later, the couple’s son, Chandler, was born.
According to market research firm Mordor Intelligence, the U.S. surrogacy market is valued between $5 billion and $12 billion.
But it’s not for the faint of heart – or wallet.
A typical New York “journey,” as the surrogacy process is known, can run a family $150,000 to $175,000, which typically covers all major costs, including agency fees, the surrogate’s base pay and medical bills, and legal fees for both parties, before fertility-clinic costs, which can tack on another $5,000 to $50,000.
While surrogates typically make between $50,000 and $90,000 — specific guidelines must be followed to qualify.
The American Society for Reproductive Medicine recommends that gestational carriers are between the ages of 21 and 45, have delivered at least one healthy term pregnancy, and have a maximum of five total deliveries or three C-sections.
They must also have a stable family environment that will support them through pregnancy.
But the laws differ state by state. There is no federal legislation and you don’t even need to use an agency.
As it stands now, NY law is one of the best, said Gina-Marie Madow, Director of Legal Services at ConceiveAbilities. Five years since its legalization, many other states look to New York as they modify their own surrogacy statutes.
NY is the only state that requires a specialized license for gestational surrogacy matching organizations/agencies.
Technically, though, intended parents don’t need to use an agency. Independent arrangements are legal, but you must comply with the CPSA. One of its benchmarks is a bill of rights for the gestational carrier “so she knows how she is protected,” said Madow.
The law also requires intended parents to cover the surrogate’s insurance for one full year after the baby’s birth, which can put an extra burden on a couple.
Then there are the necessary, but uncomfortable, conversations before the process even begins, like being aligned on whether something should happen to the baby, and whether both parties are comfortable terminating the pregnancy. And if something happens during labor, is the surrogate or baby being saved?
But even if both parties seem to be on the same page, people can change their minds. That’s what happened with West.
After the baby she was carrying was diagnosed with a severe heart defect, she said the birth parents asked her to terminate the pregnancy.
West refused, despite it being in their surrogate agreement that she would. She flew from her home in Alaska to Texas, where, under state law, she would be recognized as the birth mother. The baby’s biological parents are suing her for more than $100,000.
Could that happen in New York? Technically, yes, said Casey DiPaola, a co-founder and director of intended parent services at New York Surrogacy Center, although surrogacy professionals try their best to prevent it by following best practices.
In New York, the surrogate has the ultimate right to decide whether to terminate or continue a pregnancy. That’s why it’s so important to discuss the potential pitfalls from the outset.
“We do our best to make sure the surrogate and intended parents are fully aligned on this issue before matching,” DiPaola told The Post.
Still a stigma
Despite surrogacy bringing the Russ family their little bundle of joy, there is still a stigma around surrogacy.
When Ashley tried to arrange insurance coverage for her son’s birth, she had to explain twice that the pregnant woman was her surrogate and the baby was hers. The insurance rep couldn’t digest it.
“She was like, ‘Oh, is the woman your husband’s mistress?’ She was so confused! Ashley recalled. This is still very difficult for some people to understand.”
And people are quick to judge.
When Portia Zwicker, who was one of the first legally paid surrogates in New York after the law was passed, posted a photo shoot on TikTok of herself, Mike Dlugosz and his husband, RJ, whose child she carried, it racked up more than 1.5 million likes — with a ton of backlash, including hurtful comments (many of which Zwicker deleted), comparing their situation to “The Handmaid’s Tale.”
But Zwicker, who has been a surrogate twice and has one child of her own, thinks the vitriol is absurd.
“I wanted to experience pregnancy again but I didn’t want more children, so it kind of worked out really well,” said Zwicker, 46, who lives in Schenectady, NY. “I never felt a connection [to the baby]. Somehow my psyche just knew this is not mine. I have a stronger connection with the parents of the resulting children.”
The couple used donor eggs and Dlugosz’s sperm to have their two children, Ava and Gavin. But until it was legal in New York, they doubted that they would ever have kids.
Other same-sex couples they knew had found surrogates in Vermont, where it was legalized in 2018. But Dlugosz was a primary care physician. He couldn’t just leave the state when he felt like it. “And we really wanted to be heavily involved every step of the way,” he said.
Throughout the years he watched, distraught, as standalone bills for the CPSA faced hurdles and failed to clear the full legislature. He figured fatherhood just wasn’t in the cards for him. “I always saw myself as a dad and wanted it so badly,” he says. “The powers above made it as hard as possible to facilitate that.”
The 2021 law changed their lives. “Beyond the politics and the headlines, it’s really about family, promoting hope, and extraordinary people helping other people experience one of life’s greatest joys,” said Dlugosz. “It’s not this abstract policy issue. It meant us becoming dads.”
Read the full article here
