A Puzzling Paradox: Advancements in Reproductive Technology and New York's Ban on Commercial Surrogacy Agreements

• Date: 01 January 2021
• Published date: 01 January 2021
• DOI: http://doi.org/10.1111/fcre.12561
• Author: Emily L. Dundon

STUDENT NOTES

A PUZZLING PARADOX: ADVANCEMENTS IN REPRODUCTIVE

TECHNOLOGY AND NEW YORK’S BAN ON COMMERCIAL

SURROGACY AGREEMENTS

Emily L. Dundon

With infertility on the rise in the United States and the legalization of same sex marriage, it has become increasingly diff‌icult

for many Americans to start a family.Advancements in modern medicine have addressed this issue and now couples can cre-

ate their family through surrogacy. However, New York’s current laws have not caught up to the changing times and surro-

gacy agreements are still invalid and unenforceable. This Note proposes the repeal of New York’s surrogacy ban and the

adoption of legislation to recognize and enforce surrogacy agreements in order to bring New York’s laws within the purview

of modern medicine.

Key Points for the Family Court Community:

New York, Indiana, Michigan, and Louisiana are the four remaining states that maintain either a civil or criminal

statutory ban on commercial surrogacy agreements.

Surrogacy agreements come in two forms: (1) traditional, where the surrogate has a genetic relationship with the

child; and (2) gestational, where the surrogate does not have a genetic relationship with the child.

Between 2004 and 2008, the number of gestational surrogacy agreements increased by 89%.

Between 1999 and 2013, 18,400 infants were born as a result of gestational surrogacy agreements, with 10,000 of

those infants being born after 2010.

It is estimated that an average of nine babies are born in each state in the United States through surrogacy agreements

each year.

Keywords: Gestational Surrogacy;Public Policy; Surrogacy; Surrogacy Agreement;Traditional Surrogacy.

I. INTRODUCTION

The Musmans are a middle class couple who live in Brooklyn, New York.

1

Michael is a supervi-

sor with the New York City Department of Sanitation, and Melissa is a school teacher.

2

The

Musmans were eager to start a family, but faced diff‌iculty conceiving a child after Melissa was left

infertile due to radiation treatments.

3

Not wanting to give up on their dream of having a child, the

Musmans turned to surrogacy to start their family.

4

Because surrogacy agreements are invalid and

unenforceable as a matter of public policy in New York, the Musmans were forced to turn to other

states to f‌ind a surrogate.

5

Ultimately, the Musmans found their surrogate in Peoria, Illinois.

6

Using

the egg from a donor and Michael’s sperm, the Musmans had their f‌irst child in October of 2008.

7

The birth of their son Sean was not without diff‌iculty, as the Musmans had to take two planes from

New York to Peoria just to make it in time to watch their son being born.

8

Corresponding: emilyfcrmenc@gmail.com

Editor’s Note: Since this Notewas selected for publication, New York has passed legislation repealing its ban on commercial

surrogacy agreements and replaced it with legislation allowing for the creation and enforcement of commercial gestational

surrogacy agreements. Traditional surrogacy agreements are still void as a matter of public policy.

FAMILY COURT REVIEW, Vol. 59 No. 1, January 2021 171–184, doi: 10.1111/fcre.12561

© 2021 Association of Family and Conciliation Courts