Rich Vaughn, IFLG Blog: Move to End New York Surrogacy Ban Progresses

Movement to End New York Surrogacy Ban Advances

New York advocates for reproductive freedom report progress in their efforts to end the state’s nearly three-decade ban on commercial surrogacy agreements.

Despite ongoing organized opposition from far-right and anti-choice forces, on February 27, 2019, the New York State Assembly Judiciary Committee approved The Child Parent Security Act and sent it to the full Assembly—the first time the bill has made it this far in the legislative process. As we wrote, earlier that month New York Governor Andrew Cuomo signaled his support for ending the ban, announcing his intention to include the act in his executive budget plan. The bill will be part of the state budget bill, which is up for a vote in April, and with Democrats controlling both state legislative bodies, supporters are optimistic.

As we reported last year, New York’s 1992 ban was a backlash reaction to a heartbreaking and sensational case in which a surrogate breached her agreement to give custody of the baby to the intended parents:

New York was one of several states that instituted bans on paid surrogacy and surrogacy contracts in the early 1990s in the wake of the infamous “Baby M” case, in which a surrogate, in violation of a surrogacy agreement, refused to give custody of the child to the intended parents. In the resulting court and media battle, opponents of assisted reproduction depicted surrogacy as inhumane and exploitative of women and children, akin to “baby selling. Although “altruistic” surrogacy, in which the surrogate receives no payment, remained legal in New York, any contract to formalize the arrangements, including designating parentage, was unenforceable, effectively banning all surrogacy. For this reason, for [nearly] three decades, New Yorkers seeking to have biologically related children were forced to travel to another state for the surrogacy and birth.

In the decades since Baby M, best practices in fertility treatment, parentage laws and regulatory structures have all changed and improved. “Traditional” surrogacy, in which the surrogate is genetically related to the baby, as was the case with Baby M, is rarely practiced today, and in many states the intended parents, rather than the surrogate, are presumed to be the legal parents from the point of conception.

Yet, even as surrogacy and other forms of assisted reproduction have become more effective, popular, accessible and publicly accepted, anti-choice activists have continued to seize on infrequent but tragic cases of malfeasance or irresponsibility and the resulting inflammatory headlines to fuel their opposition.

Case in point: In a recent opinion piece for the New York Law Journal, the authors, attorney Susan L. Bender and psychologist Phyllis Chesler, who has been involved in anti-surrogacy activism for more than 30 years, likened compensated surrogates to modern-day “Handmaids,” a la Margaret Atwood’s dystopian tale. It is one of the most nastily prejudiced pieces of writing I have seen in a long time.

In their editorial, Bender and Chesler claim “commercial,” or compensated, surrogacy is “baby selling, baby buying, reproductive prostitution, and the commodification of women” and “matricidal.”

“This Bill, as written, would turn New York state into a site for reproductive trafficking,” they write.

Only the wealthy pursue parenthood via assisted reproductive technology, the authors conclude, while the poor will be exploited—as if anyone who would agree to become a surrogate must be financially desperate and without options. This toxic hit piece goes on to cast aspersions on gay intended parents, on all individuals who choose assisted reproduction rather than adoption as their path to parenthood, and, incredibly, even on children who are adopted.

The authors accuse gay men both of racism and of “fearing investigation” into their parental suitability, implying that because LGBT people are no longer universally rejected as adoptive parents they now have an obligation to adopt rather than pursue biological parenthood.

In the past, gay individuals and couples were rejected as adoptive parents. This is no longer true. Today, the Spence-Chapin Adoption Agency in New York City offers gay male and female individuals and gay couples the right to adopt newborns or infants no older than eight weeks but who are probably “black and Hispanic.” Why is this option not being exercised?

Genetic narcissism, racism, and a desire not to be investigated are possible answers.

Infertile couples or same-sex couples who desire genetically related kids are selfish, racist or fearful of adopting a “damaged” child, the authors continue:

Some people only want children who share their genes. Many potential parents do not want a child with African features. Another reason for “designer” gene babies: Even newborns may suffer from fetal alcohol syndrome, AIDS, and genetically inherited medical disorders.

After all, “adoption poses challenges,” Bender and Chesler write. “Adopted children often suffer from psychiatric problems more than their non-adopted counterparts.”

As someone who has worked with thousands of intended parents and families created with the help of reproductive technology, and with many devoted surrogates, I can tell you that none of the authors’ biased stereotypes hold up in the real world. No child is more wanted and loved than a child of intended parents, who typically go to great lengths and significant expense to conceive. No child born via assisted reproduction is an “accident.”

New York ART attorney Sanford M. Benardo, in a follow-up to the New York Law Journal piece, eloquently rebutted many of the defamatory stereotypes littering the Bender-Chesler piece:

The cases which don’t make the news but are emblematic of the vast majority of relationships I have been involved with look very different from what the alarmists see as “baby selling.” Carriers [surrogates] are often college educated and have an appreciation for the major significance of this endeavor. They have the support of their spouse or partner. They are nurses, middle school teachers, veterinary technicians and stay-at-home moms. They are used to caring for others. A typical surrogate’s family is solidly middle class—spouse or partner might be in law enforcement or construction or small business. Not wealthy, but far from desperate and destitute. And eager to save for college for their children (all carriers have given birth before) or for a down payment on a house or for some other justifiable need.

Intended parents (this is the terminology used) cannot—at any responsible clinic or program—be motivated by anything other than legitimate medical reasons. Any frivolous effort at “outsourcing” a pregnancy is exposed pretty quickly and rational physicians, mental health professionals and programs will not be in a position to assist. Rather, a common scenario would involve an intended mother on tamoxifen after breast cancer surgery, or an intended mother with a cardiac condition requiring medication which makes pregnancy dangerous, or a gay male couple now able to get married legally and wishing to have children just as any other young married couple might want. The costs are high and insurance coverage is minimal to non-existent, but it is worth it to these families.

In my own fertility law practice, I have found that people, including gay men, opt for assisted reproduction over adoption for many different reasons. Heterosexual couples who want to become parents, assuming they are fertile, have the choice between procreating the old-fashioned way or by adopting, without facing criticism for not choosing adoption. What assisted reproductive technology (ART) has done is to offer that same range of choice to many more people: people suffering from infertility, people facing invasive surgery or treatment, single intended parents, same-sex couples, and more.

ART typically is costly, as is true of most advanced medical technologies. But in the years since I established my firm, International Fertility Law Group, constant advancements and development of best practices have increased effectiveness, improved outcomes and pushed costs down, even as insurers and government health plans in the U.S. and abroad have expanded coverage for ART procedures to more people.

At this writing, advocates for reproductive freedom continue to rally in Albany, urging state lawmakers to allow New Yorkers the range of choices and the same benefits of well-regulated assisted reproductive services as enjoyed by their peers in surrounding states. We wish them well.

Rich Vaughn
Richard Vaughn
rich@iflg.net

Attorney Rich Vaughn is founder and principal of International Fertility Law Group, one of the world’s largest and best-known law firms focused exclusively on assisted reproductive technology, or ART, including in vitro fertilization (IVF), surrogacy, sperm donation or egg donation. Rich is co-author of the book “Developing A Successful Assisted Reproduction Technology Law Practice,” American Bar Association Publishing, 2017.

Peiya Wang
PEIYA WANG(王培娅)
Paralegal (律师助理)

Peiya Wang joined IFLG as a paralegal in 2015, where she manages surrogacy, egg donation and parental establishment cases and provides translation services for many of IFLG’s international clients. Peiya received her bachelor’s degree from Beijing Technologies and Business University, where she majored in Marketing. She moved to the United States in 2012 to attend Northeast University in Boston, Massachusetts, receiving a Master of Science degree in Global Studies and International Affairs in 2014. Peiya moved to Los Angeles in 2015 and received her paralegal certification from UCLA Extension. When away from the office, Peiya is a dragon boat paddler and a ballroom dancer, where she favors Rumbas and Cha-chas. She is fluent in Mandarin and English.

Luis Sosa
LUIS SOSA
Paralegal

Luis R. Sosa joined IFLG as a paralegal in 2016, where he enjoys pursuing his passion for family and reproductive law. While working toward his bachelor’s degree at Florida International University, Luis worked as a paralegal and legal assistant for family law litigation firms in Miami and Washington, D.C. As a paralegal and case manager for IFLG, Luis, who is bilingual in English and Spanish, manages surrogacy, egg donation and other reproductive law cases. In addition to spending time with husband Randy and dog Marty, Luis enjoys being outdoors and appreciating the arts.

Toni Hughes
TONI HUGES
Paralegal

After receiving her B.S. in Business Management, Toni joined IFLG to pursue her dream of working in the legal field. As a Paralegal with over 10 years of experience in the assisted reproduction technology field, Toni is our Managing Paralegal, responsible for training and managing our paralegal staff. From drafting legal documents to assisting our clients with post-birth matters, Toni embraces the challenge of learning something new in this field each day. Besides spending time with her son, Jordan, Toni enjoys exploring new things, cooking, spending time with family and friends, and serving as a Youth Advisor for “Next Generation.”

Miesha Cowart
MIESHA COWART
Financial Coordinator

Miesha Cowart joined IFLG as a financial specialist in 2014 following a successful career in development and business finance. Miesha previously worked for 10 years in the construction industry as a controller and for 13 years as Development Coordinator for the non-profit U.S. Fund for UNICEF. In her free time, Miesha works with “Next Generation” at her church. “They are my heartbeats!” she says of the youth in her community.

Kim
KIM DEVEREAUX
Paralegal

Kim has over 25 years of experience in the legal field and has worked exclusively in surrogacy and assisted reproduction law since 1999. Kim is a senior case manager of surrogacy and egg donation cases, and is also responsible for managing parental establishment cases and interacting with IFLG’s Of Counsel attorneys across the country. With three children of her own, Kim understands the importance of family and finds working in this area of law a rewarding experience.

Rich Vaughn
RICHARD B. VAUGHN
Founder

Attorney Rich Vaughn combined his personal passion as a father of twin boys born via assisted reproductive technology (ART) with more than 20 years of experience in business and technology law to build International Fertility Law Group. Today IFLG is one of the most successful and best-known law firms in the world focused exclusively on fertility law, helping thousands of intended parents through empathetic listening, compassionate guidance, and unmatched legal expertise. As an advocate for reproductive freedom, Rich also contributes his knowledge and time to improving the understanding and practice of ART law, most recently as a founder of and speaker at the first Cambridge University International Surrogacy Symposium held in June 2019, as immediate past chair of the American Bar Association ART Committee, and as a popular presenter to law schools, faculty and advocacy organizations all over the world.

Elizabeth Tamayo
ELIZABETH TAMAYO
Paralegal

Elizabeth received her Bachelors of Science degree in Criminal Justice from California State University of Los Angeles. Shortly after graduating, she continued her education at the University of California, Los Angeles where she obtained her Paralegal certificate. Elizabeth is fluent in Spanish and has been in the legal field since 2009. She is excited to be a part of the IFLG Team helping families realize their dreams.

Sunny Chien
SUNNY CHIEN
Paralegal

Sunny joined IFLG as a paralegal in 2017, where she manages surrogacy, egg donation and parental establishment cases for many of IFLG’s international clients. She holds a Bachelor of Arts degree in Philosophy from California State University of Los Angeles, where she graduated cum laude. Sunny is bilingual in English and Mandarin and has extensive experience as a legal assistant and paralegal at Los Angeles-area law firms. She is excited to be part of the IFLG team. In her spare time, Sunny enjoys spending time with her family and their dog, going to the beach, cooking, and being outdoors.

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
OFFICES
Los Angeles

5757 Wilshire Blvd., Suite 645

Los Angeles, CA 90036

Phone:  +1 323 331 9343

Email:  info@iflg.net

Website:  www.iflg.net

New York
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

501 Fifth Avenue, Suite 1900

New York, NY 10017

Phone:  +1 844 400 2016

Email:  info@iflg.net

Website:  www.iflg.net