Your baby will be delivered today between 11:06-12:06

Update your account and we will note your future delivery preferences. Your pin to receive your baby is 7879. Please provide this to your UPS delivery driver

Mary Beth Whitehead and supporters

In 1986, the case of "Baby M" in the USA caught the world's attention when her surrogate mother, Mary Beth Whitehead, refused to give up the baby to William and Elizabeth Stern, a couple who had paid her $10,000 to carry their child. Although Mary Beth Whitehead had signed a legal contract stating that she would relinquish the baby, she felt unable to let her go, which resulted in a high-profile legal battle between the surrogate mother and the intended parents that has influenced the practice of surrogacy to this day. This was the first surrogacy dispute in the USA and it centred on who should have custody of the child.

Mary Beth Whitehead had conceived Baby M using her own egg and the intended father's sperm, a practice known as traditional or genetic surrogacy, and a key argument of her legal team was that it was not in the child's best interest to be separated from her biological mother. On the side of the intended parents, the argument focused on whether or not a surrogacy contract was enforceable by law. Custody was awarded initially to the intended parents in a New Jersey court. On appeal, however, the New Jersey Supreme Court ruled that the surrogacy contract was invalid on the grounds that payment to a surrogate mother was "Illegal, perhaps criminal, and potentially degrading to women," and that the surrogate mother and the intended father were the legal parents of the child. Although custody was awarded to the Sterns – as this was considered to be in the best interest of Baby M – Mary Beth Whitehead was given visitation rights. As a result of this case, many American states and countries around the world banned commercial surrogacy.

But, like all good profiteers and exploiters, those looking to profit from womb rental and the buying and selling of eggs and babies continue to lobby governments to lift the ban, and to legalise and normalise Big Fertility. In 2020, New York changed its laws to allow commercial surrogacy. Shortly afterwards, I visited NY to investigate.

---

On April 3rd, 2020, the Child-Parent Security Act (CPSA) passed the New York Legislature as part of former Governor Andrew Cuomo’s 2020 budget package, and commercial, or ‘compensated’ surrogacy is now legal in the State of New York. Similar laws are in place in 46th other States. “Compensated surrogacy will be legal in New York in February of 2021!” read the Circle Surrogacy’s jubilant advertisement, on the eve of the new laws being passed. But to those that consider commercial surrogacy to be dangerous and exploitative, the CPSA has effectively sanctioned the pimping of pregnancy; as demand for surrogate mothers increases, so does the likelihood that women will be coerced into the arrangement by abusive husbands or boyfriends.

The new law allows for commercial gestational surrogacy in which the birth mother has not contributed any of her own genetic material, and for ‘commissioning parents’ to be named on the birth certificate. Under this law, if the birth mother changes her mind and wishes to keep the child, she will have no legal right to do so. The law only requires that the baby produced from a surrogate pregnancy be born in New York, but not that the surrogate mother is a New York resident.

Traditional surrogacy (also known as partial surrogacy) involves the surrogate's egg being fertilised with the sperm of the intended father. This remains illegal in NYC, a legacy of the Baby M case, 1986, where a surrogate mother refused to give up her baby and fled to Florida. She fought and lost a custody fight against the couple, who had contracted to pay her $10,000 to bear the child. A Task Force was appointed in the immediate wake of this case, resulting in commercial surrogacy being banned in 1992.

Although many will say that the CPSA was introduced without much fanfare, the campaign to legalise surrogacy in New York is a decade old. Versions of the legislation were first introduced in 2012, and then again in 2017. Intended parents, lawyers seeking to profit from dealing with Surrogacy cases, and of course the clinics and agencies, all argued that because some states had legalised commercial surrogacy, New York should follow suit. They were those that argued it was anti-discrimination to ‘prevent gay couples from having the same right to fertility treatment as heterosexuals. Since when did we start talking about the rights of people to have babies through surrogacy, rather than the rights of the birth mothers and all the babies produced through this method?

Feminists and other human rights organisations desperately tried to challenge this legislation as soon as it became apparent it was again on the cards. In November 2021 the Coalition against Trafficking of Women (CATW) wrote an open letter to the Special Rapporteur on the Sale and Sexual Exploitation of Children and the Office of the United Nations High Commissioner for Human Rights (OHCHR), advising that the new law could have a deeply detrimental effect on the health of both the surrogate mother and the baby. The 86 signatures of the letter include those of Gloria Steinem, and leaders of organisations dedicated to ending violence against women and human trafficking.

The letter warned of the risks of negative health consequences involved in commercial surrogacy, including premature births, cerebral palsy, epilepsy, hearing and vision loss, and myriad other chronic health challenges, as well as the significant additional risks associated with multiple pregnancies.

An extract of the CATW letter

For the women that opt for surrogacy, who are usually poor and often from otherwise marginalised backgrounds, it is primarily a way to earn money. Surrogates can receive between $42,000 and $75,000, with the price rising for carrying more than one embryo. But along with an increase in payment, there is a sharp increase in the risk of complication. There are also currently no laws in New York regulating the number of embryos that may be placed into a surrogate mother, leaving the surrogate at risk if too many are implanted. It isn’t just multiple births which increase the risk to the surrogates; the risk of a life-changing or life-ending complication rises with each pregnancy.

Taina Bien-Aimé, Executive Director of CATW and a founding member of Equality Now, worries about the risks to women. “How long will it be before a woman dies as a result of surrogacy in NY?” she told me. “The law doesn’t require a registry of women who enter into surrogacy contracts or of surrogate mothers – they don’t exist as patients worthy of tracking. Most of the recorded deaths of surrogate mothers in the US only surface because their husbands organise online crowd-funding efforts to pay for their wives’ burial costs.”

Mr Dee Gulati is Practice Manager at Surrogacy4All, a ‘full surrogacy service’, meaning that everything is arranged, from sourcing the egg donor and surrogate mother, to organising all legal issues such as the contract between the commissioning parents and the surrogate, legal parentage status, and birth certificates. The clinic recruits potential surrogates and egg donors are recruited online, similar to the sex trafficking and mail-order bride industries today. Women are reeled in twice; by the promise of money, and by suggestions that surrogacy is altruism; they are “helping a family.”

I meet with Gulati, along with his Surrogacy Program Coordinator Brenda Garcia, at Surrogacy4All on the salubrious Fifth Avenue. The offices are inside an opulent building, full of marble, antiques and huge bouquets of fresh flowers. Gulati, who also lobbied for legal commercial surrogacy, has a large number of Indian egg donors to meet the demand of his New York based Indian commissioning parents. “They want Indian eggs and white surrogates,” says Gulati. “They are afraid it might turn black if it is carried by a black surrogate.”

Gay male couples are increasingly accessing Gulati’s surrogacy services, as are HIV positive men. “We send off the sperm to be washed!” But this process is not guaranteed safe, and it poses a danger to the birth mother and the foetus, which is why surrogates are offered higher rates of pay in such circumstances. The women are literally playing a game of Russian Roulette.

Gulati is delighted to tell me that anyone who can afford it can opt for Surrogacy4All’s services, including single, heterosexual men. “One of them, he’s a plumber. The guy was married, had two beautiful children, his wife decided one day that she was leaving and so she left with the kids and now he is all alone. He then elected to have one or two kids of his own, using a surrogate mother and an egg donor, so that when he gets his next wife or girlfriend, and she decides to leave, at least the kids stay with him.” This single man would have been able to select the sex of his children for “a few thousand dollars more”.

Although commercial surrogacy can cost up to $200,000, there are ways to reduce costs, Gulati told me. “What a smart person from Britain would do is ask us to arrange health insurance for them in the state of New York, which at $500 a month is not expensive. We set them up with the centre in New York, they create their embryos. So instead of spending $20000 to create your embryos, you can do it for two months of insurance.” This option is not available to everybody; there is currently a discrimination case being heard in New York, brought by a gay couple who claim discrimination, as their insurer exempting from surrogacy cover due to a loophole.

Once the financial complications are dealt with, the embryos are created. Next, Gulati told me, “you can either ship them to an overseas carrier, or better still, have Brenda find you a surrogate mother over here, Caucasian, Mexican, black, all kinds of choices.” When I asked Gulati, as a parting shot, what he would say to those who believe that surrogacy is the exploitation of women. He told me, “In India, the choice of the surrogate was either she can be a surrogate and she can have a new roof on her hut. I’d rather carry the baby and have a new roof on my hut, so I’ll carry the baby and at least I’ll have somewhere to live.”

Before the change in the law, Ralph and his husband, from NYC, chose to have three children through surrogacy. I met up with him in NYC to discuss the change in the law. In 2009, a surrogate from Maine carried twins on their behalf, and in 2012, a second surrogate gave birth to their third child in Minnesota.

“Our first surrogate would have done it again,” he confided, “but she'd already had two kids of her own, carried twins and triplets as a surrogate, and her doctor said, ‘Don't you dare give birth again’. She was 40 at the time. The egg donor to the three children lives in Pennsylvania, and they have never met, instead communicating via the agency. “It’s a little awkward,” he told me. “We have done this intimate thing together but have never met”. It is important to Ralph, he explains, that he has answers when his children start to ask where they came from.

Ralph was obviously concerned about his children. I’m concerned about all children born to surrogates. One of the protections that reputable adoption agencies put in place before parents are approved, such as criminal background checks; mandatory participation in adoptive parent preparation classes; assurance that the adoptive families are medically, financially and mentally stable; and comprehensive home visits, are required. Although some surrogacy clinics may do these checks, there is no requirement in the law for them to be done.

The buying and selling of women’s bodies for reproduction is supported by many on the left; a notable exception to the critique of capitalism. In fact, surrogacy in the US is celebrated and seen as little different to purchasing an airline ticket. The women in the system have no name, no voice, no identity. The state allows the trafficking of their reproductive system, with a high risk of maternal mortality, protecting only her right to be paid.