References about surrogacy can be found in the bible (“when Abraham took Hegar as a concubine”).

However the field has been slow to evolve and is not universally accepted or practiced throughout the world. In a survey conducted by the International Federation of Fertility Specialists in the late 1990’s, surrogacy was accepted or practiced in only 15 of 37 countries responding to the survey.

In the United States, surrogacy is not legal in all states and laws vary widely from state to state, running the gamut from the surrogacy friendly laws in California to vague and somewhat less friendly laws in New York and several other mandates in between these two examples. IVF surrogacy involves the transfer of one or more embryos derived from the infertile woman’s eggs (or donor egg) and from sperm of her partner (or a sperm donor) into the uterus of a surrogate. In this case, the surrogate provides a host womb but does not contribute genetically to the baby. While ethical, moral, and medico-legal issues still apply, IVF surrogacy appears to have gained more social acceptance than classic surrogacy.

Candidates for IVF surrogacy can be divided into three groups

(1) Women born without a uterus or who because of uterine surgery (hysterectomy) or diseases (congenital malformations, severe adhesions, multiple fibroids), are not capable of carrying a pregnancy to full term.

(2) Women who have been advised against undertaking a pregnancy because of systemic illnesses, such as diabetes, heart disease, and hypertension, severe musculoskeletal abnormalities, Rh isoimmunization, or certain malignant conditions, necessitating the use of chemotherapy, or associated with contraindications to the extremely high levels of estrogen associated with pregnancy.

(3) Two gay men who want to have a baby and will need both an egg donor and a surrogate.

The surrogacy process

As in preparation for other assisted reproductive techniques, the biological parents undergo a thorough clinical, psychological, and laboratory assessment prior to selecting a surrogate. The purpose is to exclude sexually transmitted diseases that might be carried to the surrogate at the time of embryo transfer. They are also counseled on issues faced by all IVF aspiring parents, such as the possibility of multiple births, ectopic pregnancy, and miscarriage.

All legal issues pertaining to custody and the rights of the biological parents and the surrogate should be discussed in detail and the appropriate consent forms completed following full disclosure. We recommend that the surrogate and biological parents get separate legal counsel to avoid the conflict of interest that would arise were one attorney to counsel both parties. Furthermore, since many cases of surrogacy are performed on International Couples, it is important that the legal team is well versed in family law, international laws and knowledge of how to expedite the birth certificates. Experience in this area is one of the keys to arriving at a successful outcome.

As alluded to above, it has always baffled me as to why a treatment that is so successful and so needed for certain patients, has any restrictions in the great State of New York?

Presently, the way the law works is that Compassionate Surrogacy (where the carrier will not receive compensation, for example a family member or close friend acting as a surrogate), is completely legal in New York State. If the surrogate receives a fee from the intended parents, and the gestational carrier is a New York resident, and hence bound by new York law, New York State prohibits this practice. What one may conclude from this convoluted approach is that the lawmakers obviously recognize there is a medical need for these treatments.

However, they evidently have concerns about an industry developing around gestational surrogates. This appears to overlook the fact that pregnancy is a very difficult way to make the approximately $20,000 which carriers typically receive. Having practiced for some 18 years in “surrogacy friendly” California, and having participated in literally hundreds of surrogacy arrangements and published on the births of over 100 babies born from these techniques, I am acutely sensitive as to how unreasonable the laws on this issue are in New York. Those in need, will seek and ultimately obtain the treatment. I used to treat many New Yorkers in California while practicing there. It would be a positive step forward if the New York lawmakers would reconsider their position and focus on the medical necessity of the procedure.

At New York Fertility Services we have experience dealing with many surrogacy cases safely, effectively and legally – and will continue to do them for those women that have the need for a surrogate.