Mark Segal
PORTLAND — Matt cried at the birth of his son a few weeks ago. His husband, Sylvain, was outwardly more composed, but no less transfixed. The woman who gave birth to the child was the calmest of the lot. She alone had been through this before — twice, in fact. Besides, this wasn’t even her baby.
A paid surrogate, she had had two fertilized eggs (from an egg donor) implanted in her uterus. She had carried the baby for nine months, lost its twin during the pregnancy, endured false contractions, and finally gritted her teeth through three hours of labor. And although she took a turn holding the baby and pumped breast milk, all her responsibilities toward him ended at birth, while Matt and Sylvain, French nationals recently transplanted to New York City, dove into the deep end of parenting.
That all this occurred in Oregon was not an accident. Although it’s home to far fewer surrogacy births than the much more populous California, it nonetheless has earned an outsized reputation as a place that welcomes surrogacy. It offers a supportive legal system — allowing surrogates to be paid and the names of intended parents to appear on birth certificates — as well as a supply of surrogate mothers and healthy egg donors, and integrated medical and legal teams that make a once unimaginable biological and legal process virtually seamless.
For Matt and Sylvain, who asked that only their first names be used because they intend to return to France, where paid surrogacy is barred, Oregon also provided the additional benefit of being gay-friendly.
“We couldn’t be more thankful to Oregon,” said Matt, a 30-year-old banker, who, along with Sylvain, contributed sperm to fertilize the two donor eggs.
Oregon and seven other states — California, Connecticut, Delaware, New Hampshire, Maine, Nevada and Rhode Island — have laws and procedures that are welcoming to gestational surrogacy, that is, births in which the woman who delivers is not genetically related to the child and will not be its legal parent, according to Creative Family Connections, a Maryland law firm that specializes in surrogacy and tracks state laws related to the practice.
The states allow payments to surrogate mothers and permit both intended parents (and not the birth mother) to be named on birth certificates. All courts in the states issue pre-birth parentage documents, which officially declare both intended parents as the legal parents.
A legal gray area
Four states — Michigan, New Jersey, New York and Washington — prohibit paid surrogacy or do not enforce surrogacy contracts. And Washington, D.C., criminalizes surrogacy.
That leaves the rest of the country in a fuzzy area in which surrogacy is permitted, but with some limits on whether the surrogate can be paid beyond medical expenses, whether the state will uphold surrogacy contracts, who can arrange surrogacies, and whether intended parents can be named on birth certificates or be declared legal parents.
For example, in Virginia, only married couples — gay or straight — are permitted to use donated sperm or eggs for conception, and a couple cannot be declared legal parents if neither person is genetically related to the child. In Nebraska, the surrogate must be named as a parent on the birth certificate. In Oklahoma, only married heterosexuals can be named legal parents without being biologically related to a child born through surrogacy.
“We tell prospective parents to make sure they fit a state’s specific criteria and to make sure they can live with the restrictions and the hurdles that state has in place,” said Diane Hinson, founder of Creative Family Connections.
A number of states enacted restrictions on surrogacy in the wake of a 1986 case, in the early days of surrogacy, when a carrier in New Jersey refused to relinquish the baby she had agreed to carry for a couple.
Overall, surrogacy births have become more common in the U.S., often with intended parents contributing sperm or eggs for fertilization as a way to have some biological connection to the child. Live births by surrogate mothers were up more than 160 percent from 2004 to 2013, to 1,939, according to the American Society for Reproductive Medicine.
Changing laws
Many states are likely to revisit their surrogacy laws as a result of the U.S. Supreme Court’s ruling this year that made gay marriage legal nationwide, Hinson said.
Texas and Utah already have removed some restrictions on surrogacy that had only pertained to gay couples. The New Jersey Legislature passed a surrogacy law this year that would have permitted compensated surrogacy, but Republican Gov. Chris Christie vetoed it, the second time he has rejected such a measure. And New York Gov. Andrew Cuomo, a Democrat, is reportedly considering supporting a measure that would allow surrogacy births in the state.
Some conservative groups oppose surrogacy, including the nonprofit Center for Bioethics and Culture, which has lobbied against the easing of surrogacy restrictions. “Surrogacy is another form of the commodification of women’s bodies,” the group says on its website. “Surrogacy degrades a pregnancy to a service and a baby to a product.”
Unless prospective parents have a prior relationship with a surrogate, they generally must pay her to carry their child. The going rate in the U.S. — usually at least $26,000 plus medical and other expenses — is higher than it is in many other countries where surrogacy is legal. But some foreign residents say they are more comfortable pursuing surrogacy here.
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