October 4, 2012

By Alissa Fleck

In 2006, when Brooklyn local Melissa Musman was told by her doctor she could not have children following radiation treatments for desmoid tumors, she and her husband, Mike, decided to seek a gestational surrogate, or a woman who would carry their baby to term. With the help of an egg donor, they froze six embryos and began the search.

There was, however, one major obstacle for the Musmans—commercial surrogacy, or paying a woman to act as a gestational carrier for another’s baby, is still illegal in New York state, one of six U.S. territories where the arrangement is outlawed.

According to state Sen. Liz Krueger, an outspoken advocate for women’s reproductive rights, commercial surrogacy, which has been illegal in New York since 1992, is “like organ donation and adoption, a complicated issue rife with thorny ethical and moral questions.”

“Surrogacy options are clearly expanding, but our laws need to evolve carefully,” Krueger added in an interview.

Nominee for the New York State Senate and Greenwich Village resident Brad Hoylman, who has been working to repeal laws against surrogacy, said the Baby M case in 1986 “created a chilling effect on surrogacy throughout the country, including New York.” New York outlawed commercial surrogacy six years later, in the aftermath of the trial. The Baby M case, which took place in New Jersey, was the first American court ruling on surrogacy, an issue that was controversial at the time. In the case of Baby M, the surrogate mother—who used her own eggs—had a change of heart and refused to give up the baby.

The drawn-out case ended after two years of courtroom battles, with the surrogate mother only receiving visitation rights to “Baby M.” The Supreme Court of New Jersey subsequently invalidated all surrogacy contracts, rendering paid surrogacy illegal, and similar disputes in other states quickly followed suit.

In 1987, the New York Times reported, “The emotional courtroom battle for custody of Baby M has cast a sharp and disquieting light on the tangle of ethical and legal uncertainties surrounding the growing practice of surrogate motherhood.

“To some who have studied the issue, one of the most disturbing elements of surrogate motherhood is the overtone of class exploitation,” the Times continued. At the time of the article’s publication, an estimated 500 surrogacy arrangements had taken place in the country.

“I think gestational surrogacy is still illegal in New York because there hasn’t been an organized effort to change the law since the infamous Baby M case,” Hoylman noted. Melissa Brisman, owner of Reproductive Possibilities, the largest surrogacy agency on the East Coast, also points to the case as a watershed moment. “Women wanted to keep their babies,” she said. “New York and New Jersey made commercial surrogacy illegal.” Brisman, an attorney, helped draft legislation to legalize and regulate commercial surrogacy in New Jersey that was vetoed by Gov. Chris Christie in August of this year.

New York State Assemblywoman Amy Paulin has also introduced legislation this year on the subject, with the hope of legalizing commercial surrogacy in New York. “The law in New York has simply not caught up with current technology and practice of gestational surrogacy,” Paulin said. “[Families] should not have to travel to other states or abandon their dream of parenthood because of an outdated law.”

Currently, New Yorkers must leave the state to arrange commercial surrogacy contracts and oversee the process.

Despite the geographical hurdles, the Musmans did not have many requirements for a surrogate. “We were looking for the simple things in life,” Melissa said. They wanted her to be reasonably close by air travel, and not a smoker. “Because the egg donor was someone else entirely,” explained Melissa, “the surrogate was essentially an oven.”

The Musmans used Reproductive Possibilities to arrange their surrogacy, ultimately settling on Tracy, a woman from Illinois. They paid to fly Tracy to and from Connecticut to carry out the procedure.

“She was doing it out of the goodness of her heart,” said Melissa. “But she was honest about also wanting the money.”

Expense is a major issue when it comes to surrogacy. The Musmans estimate they paid about $100,000 total between surrogacy and egg donation.

Krueger also worries about the price component. “Whenever we talk about individuals’ rights over their own bodies, our first priority must be preventing exploitation of the less fortunate in our society,” she said. “Life—and lives—should never be for sale in our society.”

Altruistic surrogacy—a woman, usually a friend or relative, acting as a gestational surrogate without compensation beyond what is medically required—is permitted by New York State law.

However, “no one will [be a surrogate] for free,” according to Brisman. “Unless it’s someone who loves and cares about you.” The Times reported in the 1987 article that 89 percent of would-be surrogates interviewed at the time wanted to be paid for their services.

Brisman has three children via gestational carrier herself. She went outside the state of New Jersey for her own children to be born, using carriers in Maine and Pennsylvania. “When I did it, it was not as popular,” she said.

“Now it’s the new normal—there’s even a TV sitcom about it,” said Brisman, of the NBC network show, literally called The New Normal.

Brisman adds with so many celebrities or public figures having babies via gestational carrier, eventually New York “will be forced to change.”

However, the biggest increase in surrogacy, according to Brisman, is same-sex couples now that same-sex marriage is legal in many places. In fact, Hoylman and his partner traveled outside New York to arrange their own surrogacy.

“Surrogacy gives LGBT couples another option in addition to adoption to have children, and is a potential tremendous benefit for infertile straight couples, too,” said Hoylman. “Like my partner and me, many gay and lesbian couples have had to travel outside of New York to states like California to arrange their surrogacies, which makes the procedure far less affordable.”

With the help of advocates like Brisman and Paulin, surrogacy in New York has made certain advancements in recent years. Brisman argued and won a landmark case before the New York appellate court which now allows genetic parents of babies delivered via gestational carrier to do a post-birth maternity order.

Prior to Brisman’s case against the Department of Health (DOH), genetic parents still had to adopt their own baby after it was born via gestational carrier. The DOH maintained the woman who gave birth was the legal mother, in all cases.

This arrangement is far from ideal for clients who might seek help from an organization like Reproductive Possibilities. As far as the legalization of commercial surrogacy in New York, Brisman indicts the state, saying, “Commercial surrogacy will not pass with the way the [state] government body is currently stacked.”

Brisman believes some New Yorkers may choose to circumvent the law and organize a commercial surrogacy arrangement in New York, but likely not many. She explains it’s easy enough for most New Yorkers to travel to Connecticut, where the arrangement is legal. Not only is commercial surrogacy considered a felony in New York, the surrogate would be allowed to keep the baby, says Brisman.

Brisman’s own surrogacy process had its ups and downs. “I got my children right away from the minute they were born by terminating the surrogate’s right,” she said. But for her, the surrogacy process was “nerve-wracking.”

“I was one of the first court orders for children in the state of Maine, I was paving the way,” said Brisman. “The medicine was easy, though—it was a successful procedure.” The Musmans were in New York when their surrogate Tracy’s water broke and immediately got on a plane, determined to make it to Illinois in time for their son’s birth. “Making it to the birth was the last obstacle,” said Melissa, but the Musmans did make it in time to see their son Sean be born.

“We feel a lot of women think it’s the end of the road if they can’t have a baby,” she said. “This is a great experience. [Sean] is still our son.”

The Musmans say the next time they use a surrogate, they will still likely have to go out of state, but they will “find someone closer.”

While Brisman cites state government as an obstacle to repealing surrogacy laws in New York, Hoylman is hopeful change is around the corner.

“New York has some of the best fertility clinics in the country and a large LGBT population that would like to take advantage of surrogacy,” said Hoylman. “With the legalization of same-sex marriage in New York, legalizing surrogacy seems like the natural next step to support LGBT families.”

He added: “I think it’s only a matter of time before the laws catch up to the science.”