The State of Surrogacy in New York: A New National Prototype, New Patrons, New Perils?

Abstract

Four decades after the Baby M case that led to the prohibition of commercial surrogacy in New York, much has changed in the infertility industry. Advanced technologies including the advent of gestational carrier pregnancies had made it easier and more efficient to create IVF embryos at a distance and over time, accelerating a boom in cross-border, reproductive services and allowing compensated surrogacy to flourish in a growing number of surrogacy-friendly states and beyond. For international couples, the USA has become a hot spot for "circumvention tourism" given its first-rate medical care, ample supply of willing gestational carriers, burgeoning interest in family building among gay couples, and immediate USA citizenship for the child. This commentary reviews selected sociocultural and global forces that helped set the stage for the passage of the Child-Parent Security Act in New York state in 2021, and the efforts by its opponents for stronger protections not only for gestational carriers, but for gamete donors and the donor-conceived offspring. I argue that despite more responsive medical and legal guidelines, the high market demand and economic profits, combined with the lack of regulatory teeth, faulty assumptions about health risks and decision-making autonomy, and inadequate research on long-term health outcomes, continue to make compensated gestational surrogacy in the state of New York a high-risk venture without adequate informed consent. Possible unintended consequences and future research questions are proposed.