Surrogacy legal in NY: What this means for New Yorkers

Surrogacy legal in NY: What this means for New Yorkers

02/17/2021

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Ever since Kelly Cesare got married to husband Alex in November 2019, she dreamed of starting a family.

But as a childhood cancer survivor, the 30-year-old school psychologist is unable to carry a pregnancy to term.

“My problem is that my heart isn’t strong enough to beat for me and a fetus,” said Kelly, who was diagnosed with B-cell lymphoma at age 7.

Her cardiologist suggested hiring a gestational carrier — a woman who would carry the couple’s fertilized egg and have no genetic relationship with the embryo.

But that option had been off the table — until this week. On Monday, after a decades-long battle, paid gestational surrogacy became legal in New York, allowing couples such as the Long Island-based Cesares — who in the surrogacy world are called “intended parents” — to finally have a family of their own.

“I knew since I was a teenager that having children would be hard for me,” said Kelly, who lives in Mineola and is prepared to spend $130,000 to have a child via gestational surrogacy.

That’s the “all-in” price tag — including legal fees and health insurance — for the services of Chicago-based surrogacy agency ConceiveAbilities, which has a location in NYC.

“You want to fixate on the price because it is so much,” said Kelly, “but holding your baby in your arms is priceless.” 

Previously, New Yorkers like Kelly had to travel to California or the Midwest, where paid surrogacy is legal.

That was a nonstarter for Kelly, who was restricted to a surrogate within a two-hour drive for medical reasons, since her IVF treatments took place at NYC’s Weill-Cornell Medicine on the advice of her cardiologist.

“It’s a huge sigh of relief now that we know we can have a New York-born baby and not play hopscotch to get there,” she said.

Surrogacy fell out of favor after a high-profile 1985 case involving New Jersey surrogate Mary Beth Whitehead.

Whitehead had used her own eggs to help childless couple William and Elizabeth Stern conceive, then refused to give up the child, known as Baby M, after giving birth in 1986.

While the Sterns were ultimately granted full custody of the child, the New Jersey Supreme Court invalidated their surrogacy contract, and the case led to a ban on paid surrogacy in New York and New Jersey.

Proponents of the New York law, which was passed in April and took effect on Monday, believe that it will allow more people — including those with fertility issues or are in same-sex relationships — to share in the joys of parenting.

They also point to its protections for surrogates, such as a bill of rights that ensures that they continue to make their own health-care decisions, and the fact that most modern surrogates are impregnated via IVF using a couple’s own fertilized eggs.

Ever since her older sister struggled with fertility issues, Rebecca Kitchin, 32, has wanted to help couples conceive.

“A lot of people ask me why do you want to do it — they laugh at it or roll their eyes,” she said.

But Kitchin, who works for an agency that helps those with developmental disabilities, feels so compelled to help other families that she even considered crossing state lines to become a surrogate. Now, she hopes to be a first-time surrogate in her home state.

She is part of the less than 1% of applicants at the agency ConceiveAbilities who was accepted to be a surrogate.

“So many families have to jump through insane hoops,” said the single mom from upstate Warrensburg.  

“I’m so ready to help a family and bring more meaning into their lives while creating more meaning for mine as well.”

Another surrogate hopeful is Michelle Galang, a 30-year-old mom of two from Ridgewood, Queens.

Galang said she wanted to work with the Egg Donor & Surrogacy Institute after a close friend was unable to have children.

“As a mom, I don’t know what I’d do without my kids. Anyone who’s able to have a child — through adoption, IVF or surrogacy — is very blessed.”

When she spied ads on social media to become a surrogate, Galang, a sales specialist who’s engaged, said she knew she wanted to take the leap.

“I want to make a difference by carrying a baby,” she said, adding that she loved being pregnant and “feeling a heartbeat or a kick.”

Critics of surrogacy argue that the industry preys on women who’ve fallen on hard times, but proponents say that’s not true.

Agencies screen out surrogacy candidates for whom finances are a major factor. They also check applicants’ health, stability and motivation and sometimes look to a surrogate’s past pregnancies and/or role as a current mother to assess her viability.

It’s a grueling process that includes rigorous mental health and physical evaluations.

It’s a “deep dive into who you are,” said Kitchin, “making sure you’re emotionally ready to handle it. It’s a lot, but they do it in stages — it’s not all at once.”

Although she admitted that there are potential complications — “worst case is I die,” said the 5-foot-4, 150-pound mom — “It’s a risk that I have to take. I try not to come at this [from] a place of fear.”

She’s even explained the ramifications to her 7-year-old daughter.  “She wants a sibling, but I told her this wouldn’t be her sibling. She understands what I’ll be doing.”

ConceiveAbilities CEO Nazca Fontes said there are already several dozen potential New York surrogates “in the pipeline” to help intended parents, adding that she hopes to dispel the misconception that money is what drives surrogacy.

While compensation for the surrogate can be as much as $60,000, plus full coverage of her maternity care and insurance, Fontes insisted that finances play only a small role.

“Joy is the primary motivator, not money,” she said.

The new law is a big game-changer for local families — and what they will look like in the years to come.

Before the state’s legalization, about one-third of ConceiveAbilities’ intended parents came from New York, but Fontes expects that number to grow now that there are significantly fewer hurdles.

“These clients were going through extreme effort and expense to start a family,” Fontes said. “The couple could live in New York, but their surrogate had to be in another state. Therefore, they had to leave the state for IVF, to visit their surrogate and for the delivery.

Before the state’s legalization, about one-third of ConceiveAbilities’ intended parents came from New York, but Fontes expects that number to grow now that there are significantly fewer hurdles.

“If they were an infertility patient, they’d have to give up their relationship with their doctor and find a new physician out-of-state, and create embryos out-of-state or ship pre-existing embryos out-of-state. This added level of complexity is enormous, stressful and costly.

“Now it’s much easier.”

In-state IVF clinics are seeing a boom, too, said Fontes, who expects the first embryo transfers to happen as soon as next month, with the first baby a mere year away.

“We’re probably looking at our first birth most likely at the first part of 2022,” she said.

In the meantime, both intended parents and surrogates are figuring out their new roles in the families they hope to create.

“I’ve heard about bad relationships with intended parents — telling the surrogate they want a relationship but they don’t follow through with it,” said Kitchin, who hopes to remain in contact with the family after the baby’s birth.

“For some it’s a business transaction, but I want that connection. I wouldn’t be able to do it if it were just a business transaction.”

Kelly Cesare is similarly excited — and optimistic — about matching with a surrogate.

“It’s so exciting and, truthfully, a little nerve-racking now knowing that we’re closer to becoming parents,” she said, adding that she has no real deal-breakers for the profile of her surrogate.

“We truly believe that if a woman is generous enough to carry our child for nine months, we couldn’t care less what she looks like, who she’s married to or what religion she practices. We’re just so grateful to have someone in our life to help bring our miracle baby into this world.”

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