New York Almost Joined The 21st Century On Gestational Surrogacy, No Thanks To Gloria Steinem

New York continues to be one of the few surprising gestational surrogacy holdouts, with an outdated law based on outdated notions and outdated technology.

The New York bill in support of regulated compensated gestational surrogacy — the Child-Parent Security Act (CPSA) — had the vocal support of Governor Andrew Cuomo, passed the State Senate, and likely had the votes in the House. But it never made it to the floor before the legislative session ended last week. What the heck happened?!new york surrogacy

Some Background.

New York is one of the few states in the country that legally prevents a woman from carrying a hopeful parent’s or couple’s embryo to birth, and receiving compensation for her nine months of intense effort and … labor. Other jurisdictions that had previously banned the practice have since changed course in the last few years — including New Jersey, Washington State, and D.C. In the meantime, New York continues to be one of the few surprising holdouts, with an outdated law based on outdated notions and outdated technology.

As previously discussed in my column, while gestational surrogacy is a big part of the New York bill, the CPSA includes other key protections for parents hoping to conceive using assisted reproductive technology. For example, it fixes the state’s legal loophole that allows sperm donors who donated to a single parent to seek legal rights to the resulting child! And vice-versa, it closes the loophole that currently allows single parents to seek child support from a donor. So these were improvements all around.


New York’s ban stems from the disastrous Baby M case in the 1980s. That case occurred in next door New Jersey, where a woman agreed to be inseminated and carry the resulting child for another couple. This type of arrangement is generally referred to as “traditional,” or “genetic surrogacy.” In the Baby M Case, the genetic surrogate changed her mind about giving up the baby, and fled the state with child. Both New Jersey and New York quickly over-corrected and outlawed all compensated surrogacy. Since then, genetic surrogacy has largely been abandoned across the U.S., while gestational surrogacy — where the surrogate is not genetically related to the child she carries — has flourished. Note that the CPSA only aims to legalize gestational surrogacy, not genetic surrogacy, the type found in the Baby M Case. Last year, New Jersey (ground zero for Baby M) recognized that the times and medical practices have changed, and reversed its position by passing supportive gestational surrogacy legislation.

So Close! 

The momentum for the bill was building, and supporters believed that the CPSA had a good shot at becoming law this year. So, what pulled the brakes? I spoke with Denise Seidelman, a prominent New York adoption and surrogacy attorney, and part of a coalition in support of the CPSA. Seidelman shared her experience advocating for the bill. “It was one the most profoundly inspiring, and also intensely disappointing experiences. Emotions were running high on both sides of the issue.”

Seidelman explained her view on some of the factors that led to this not being the CPSA’s year. For one, she noted that the author of the original New York surrogacy ban (from 30 years ago), Helene Weinstein, is still a current member of the Assembly, and she is outspoken in her position, perhaps colored by her experiences of a generation ago.

Seidelman felt another factor in this year’s failure was the timing of a letter by Gloria Steinem, famed author and feminist, against the CPSA. Steinem’s letter was disappointing, and really a bit shocking for those familiar with how surrogacy works. Her letter referred to a 1998 NY Task Force report that came out against surrogacy, with no mention of a more recent and more relevant 2017 NY Task Force report in support of gestational surrogacy, with measured regulation. Unfortunately, Steinem spoke not from firsthand knowledge of the recent experiences of women who choose to be gestational carriers for others, but from a perspective that has long since gone by the wayside.

The letter described how the bill would risk the well-being of the marginalized women in the state — those in conditions of poverty. However, as pointed out in the rebuttal letter written by RESOLVE, the national infertility association, of the women who raise their hands to be surrogates, only about 5 percent are determined to be medically qualified, and are able to move forward. And one of the requirements is that they are financially stable. Additionally, the 2017 Task Force report found that the women who are acting as surrogates are not the marginalized of society, but those not reliant on compensation that may be received from acting as a gestational surrogate. Steinem’s letter is an imagination of the Handmaid’s Tale, but ignores the current reality of what surrogacy is, and how it works., June 26, 2019 by Ellen Trachman

Click here to read the entire article.

Men Having Babies – The Journey Starts Here

For the last 6 years I have been the Chairman of the Board of Men Having Babies, a nonprofit organization that helps educate gay men about having their own biological children through surrogacy.

 I have never been prouder of the mission of an organization I have been a part of than I am with Men Having Babies.  We also help men who cannot otherwise afford surrogacy with our Gay Parenting Assistance Program, or GPAP, which provides discounted and donated services, as well as cash grants, to eligible couples and individuals.  We advocate for ethical surrogacy and assist thousands of men around the world.  This 8 minute video shows what kind of a difference we can make.  It is my privilege to share it with you.

Gay men thinking about having families is nothing new.  While I grew up in an era that being gay and being a father were not usually understood as being possible together, thankfully this is no longer the case.  Creating and protecting a family is a realistic dream of all people, especially gay men.

Men Having Babies is a non-profit organization dedicated to educating and assisting gay men to create their own families. Each year educational conferences are held around the world in such cities as San Francisco, Brussels, New York, Tel Aviv, and Chicago. Click here to visit the Men Having Babies website.

Click here to watch the video.

Finding a Surrogate Mother – And Your Future

Finding a surrogate mother is the first step for couples who want to have a biologically related family through surrogacy.

Finding a surrogate mother is also one of the most profound journeys that a couple can embark upon. Before we look at the specifics of who makes a good surrogate mother and what red flags to look for, we need to understand the processes that require finding a surrogate mother.New York surrogacy

What is surrogacy? – There are essentially two types of surrogacy, traditional and gestational, and two ways to go about it, independent surrogacy and agency surrogacy.  Traditional surrogacy is when the woman who provides the egg is also the surrogate mother.  She has a biological relationship to the child she is bearing for the intended parents (IPs – the people who will be the legal parents of the child born through surrogacy).  Gestational surrogacy involves a separate egg donor who provides the egg through a clinic to the gestational surrogate mother.  The egg is implanted via in vitro fertilization and the surrogate mother does not have a biological relationship with the child she is bearing.

Independent surrogacy requires the intended parents to coordinate all aspects of the surrogacy journey. These aspects include:

  • Finding a surrogate mother and providing for compensation and expenses
  • Finding an egg donor
  • Locating and paying the bills of the clinic that will perform the IVF
  • Locating and paying for attorneys to:
    • Draft donor and surrogate agreements
    • Represent the egg donor, if necessary
    • Represent the surrogate mother
    • Establish parentage for the IPS
  • Providing support to all parties, psychological, emotional and financial

With agency surrogacy, the surrogacy agency, full-service or otherwise, takes on some or all of the tasks listed above. The fees for agency surrogacy are increased due to this extra work; however, some people prefer to have the work handled by professionals with experience in this ever changing area of law.

What to look for in a surrogate mother – Finding a surrogate mother that is right for your family is crucial to a successful and happy pregnancy and birth experience.  Most agencies will only consider candidates for surrogate motherhood who are married and have already had at least one child.  This should be your baseline as well if you are attempting independent surrogacy.  Married surrogates with their own children are preferred because they have a built in support system for the pregnancy and they have had the experience of giving birth.  You do not want your surrogate to have her first birth experience with a child that she will not be raising.

Other questions to ask when finding a surrogate mother are:

  • Why do you want to be a surrogate mother?
  • Do you know anyone who is, or has been, a surrogate mother?
  • How do you feel about being compensated?
  • Do you have a support system in place, i.e. are you comfortable sharing with your friends and family that you are being a surrogate mother?
  • How will you explain the child born through surrogacy to your children?

There is no “right” or “wrong” answer to these questions. They are designed to spark conversations that will allow you as the IPs to get a feel for the surrogate mother’s motivations and capability to carry someone else’s child. It will also give her an insight into who you, as IPs, are and if she wants to work with you. This unique relationship is a two-way street and it is critical to remember that your surrogate mother is not your employee, she is helping you have a family.

Pay attention to red flags – If any of the answers you get to the questions above cause you concern, please pay attention to that.  If you sense that financial gain is the only motivator for your surrogate mother, she probably is not the right person to carry your child.  If she has no support system to help her through the process, she would probably not be the best choice.

Finding a surrogate mother is one of the most important tasks that IPs face on their journey toward family. I strongly suggest taking a look at the Men Having Babies  Framework for Ethical Surrogacy for Intended Parents.  It was created with the input of seasoned surrogate mothers, to give IPs their own list of best practices to ensure that they, and their surrogate mother, are prepared for the journey ahead.  If you have any questions about this, or anything else surrogacy related, please contact me at

Men Having Babies’ Gay Parenting Assistance Program Expanded to Help Prospective Surrogacy Dads with Discount on Fertility Medications

Men Having Babies (MHB) Gay Parenting Assistance Program (GPAP) announced today that EMD Serono, the biopharmaceutical business of Merck KGaA, Darmstadt, Germany, in the U.S. and Canada, will provide eligible prospective gay parents with up to a 75% discount on select fertility medications for use by their surrogates when redeemed at an EMD Serono participating pharmacy.

GPAP annually provides dozens of prospective parents with over a million dollars worth of cash grants, discounts and free services from more than fifty leading service providers. “GPAP was created to promote affordable surrogacy services for gay men, the first such program to do so,” said Ron Poole-Dayan, the executive director of Men Having Babies. “In the last two years more than 300 couples became eligible for substantial discounts off the cost of surrogacy services, and more than 40 couples have received direct Stage II financial assistance, including grants and free service. Ten babies were already born to Stage II couples, and many more are on their way.”

“Our mission at EMD Serono is to advocate for people who want to have a child,” said Craig Millian, Sr. Vice President, US Fertility & Endocrinology at EMD Serono. “We are excited to be the first manufacturer to provide financial assistance, in the form of discounted medicine, directly to the gay community. Most importantly, we are thrilled to work with Men Having Babies to try to help more and more people build families.”Men Having Babies

The collaboration will be officially announced at a special dinner reception at the upcoming Surrogacy and Gay Parenting conference in Dallas, TX, this Father’s Day, which EMD Serono is co-sponsoring. The conference is based on the successful model of programs MHB has already organized in NYC, LA, San Francisco, Chicago, Brussels and Tel Aviv. It will bring together under one roof community activists, experts, parents and surrogates who will share their experiences. Prospective parents at all stages of their journey are encouraged to attend – from those who are just beginning to weigh their parenting options to those who are already in process.

Some of the other sponsors of the Dallas conference are also major supporters of GPAP, including Simple Surrogacy and Fertility Specialists of Texas, which have already helped several couples that have had children or are currently pregnant.

“For a same-sex couple, conceiving a child through third-party infertility treatments can be incredibly expensive,” said Jerald S. Goldstein, MD, medical director and founder of Fertility Specialists of Texas. “Through strong support initiatives like the Gay Parenting Assistance Program (GPAP), having a biological child is becoming more of a reality for intended fathers worldwide. We are proud to partner with Men Having Babies and to be a continued participating infertility center with GPAP.”


Click here to read the entire release.

Compassionate Surrogacy – Options For Your Family

adoption and surroagcy lgbt family planning

Compassionate surrogacy, sometime referred to as altruistic surrogacy, is the process where a woman, the compassionate surrogate, carries a child of the intended parents with the intention of giving that child to the parents once it is born.

A compassionate surrogate does not receive compensation for her services.  It is a special person who can be a compassionate surrogate.  When is compassionate surrogacy the right choice for your family?  The answers depend upon several factors.


  1. Compensated surrogacy is currently illegal in 3 states: New York, Michigan and Louisiana. While that doesn’t necessarily mean you can’t use a surrogate in those states, entering a compensated surrogacy contract could incur criminal penalties depending on your state of residence. Compensated surrogacy means that the surrogate mother receives a fee for participating in the surrogacy process.
  1. If you want to go through compassionate surrogacy in New York, the surrogate cannot accept compensation outside of statutorily allowed medical and legal costs. The surrogate in these cases is often known by, and close with, the intended parents. It may be a family member as well. You will need a lawyer to determine what costs are and are not allowed to be paid by you, and also to draft a Memorandum of Understanding between the intended parents and the surrogate mother to outline the process and provide for all possibilities that may occur during the process from insemination to birth, and beyond.
  2. A surrogacy, or ART (Assisted Reproductive Technology) attorney must have extensive experience in these types of agreements and can help you and your partner or spouse learn what to expect, average timelines, required paperwork, and even let you know the average costs as well as what is and isn’t legal for you to pay for during the pregnancy.
  3. A compassionate surrogacy attorney can help you manage the relationship with the surrogate and provide dispute resolution that may be needed throughout the surrogacy process, in most cases through the surrogate mother’s separate attorney.
  4. The most critical aspect of compassionate surrogacy is establishing the parental rights of the non-biological intended parent.       Your attorney can help the non-biological parent petition for second or step parent adoption so that both parents have a legal relationship established to the child as soon as possible. Read this article for more information about the second/step parent adoption process.
  5. It’s extremely important to have a lawyer draft any agreement or Memorandum of Understanding between the intended parents and the surrogate mother. If there is a misstep in the contract, you and your child could potentially go through a lengthy and painful custody battle (not to mention the aforementioned criminal penalties in NY) should the mother change her mind. It would be devastating to lose your child over a technicality in the contract.
  6. The hardest part of the process to really grasp is that the Memorandum of Understanding is technically unenforceable in New York.  It’s purpose is to have the parties go through the process of discussing the elements of the journey and the possible contingencies that may occur.
  7. It is critical that psychological support services are provided for both the surrogate and the intended parents and that both parties thoroughly understand the process before entering into any agreement.

gay surrogacy, compassionate surrogacy, altruistic surrogacy, New York surrogacy, gay surrogacy, surrogacy

There is currently legislation in New York State that would legalize compensated surrogacy. The Child Parent Security Act would not only make compensated surrogacy a legal option for NY parents, it would also allow both intended parents to be immediately legally recognized as parents at the birth of the child, thus negating the need for the lengthy process of second or step parent adoption by the non-biological intended parent. The CPSA would further protect the rights of surrogates, making sure they are not legally responsible in any way for a child they never intended to parent. While the LGBT community, as well as opposite-sex couples who may need a surrogate, are hopeful it will pass, the bill has been stuck in committee for many years.

If you’re thinking of expanding your family with the help of a compassionate surrogacy, start the process by speaking with an experienced attorney so you can get a solid idea of what to expect, and even if it’s the right decision for your family. As a leading expert in the Family and Estates division of Albert W. Chianese & Associations, Anthony M. Brown is here to help your family with all of its growing legal needs. Call 212-953-6447 or email to answer any questions you may have concerning compassionate surrogacy or any legal questions concerning same-sex family planning.

gay surrogacy



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Top Concerns for Gay Men Considering International Surrogacy

International surrogacy poses many questions, and potential obstacles for gay couples.

A gay couple made global headlines last year when their plans for having a baby together went horribly wrong. Manuel Santos and Gordon Alan “Bud” Lake III chose to move forward with a surrogate in Thailand, but after their baby was born, the surrogate refused to sign the final papers, chose to back out of the contract, and eventually decided to fight for custody. International surrogacy was back in the news.

Their case eventually went to court, but was complicated by the fact that the law in Thailand does not recognize same-sex marriages. On top of that, a new law that bans commercial surrogacy went into effect after their baby was born. The odds were stacked against them and the couple had to turn to crowd-funding to help pay for the legal fees and the costs of staying in the country during the battle. Thai surrogate mother

“Our lives have been turned upside down,” the couple explained on Fundly. “Our jobs are in danger, our family is now divided, false allegations and criminal charges have been brought against us. What was supposed to be the happiest time of our lives, bonding with our new baby girl — our daughter and our son’s new little sister – has turned into an absolute nightmare.”

I’ve heard similar stories like this before. I recently published a book titled, Journey to Same-Sex Parenthood: Firsthand Advice, Tips and Stories from Lesbian and Gay Couples, to help LGBT people understand the pros and cons to the various paths to parenthood. The book compares adoption, surrogacy, foster care, assisted reproduction, and co-parenting. One section in the book tells the story of David and Josh, a gay couple who decided to have a baby through international surrogacy but wound up stranded in India for a month after the government refused to grant exit visas for their newborn twins.

David and Josh were eventually allowed to bring their children home to the U.S. I’m also happy to announce that on April 26, Santos and Lake won their court battle in Thailand too, although the couple is still not able to take their child out of the country right away because of the possibility of an appeal by the surrogate mother.

I don’t want to make it sound like surrogacy is bad, or that all people who choose international surrogacy are destined to have horrible experiences, but I do want to raise awareness about the challenges that LGBT people may encounter when choosing to move forward on this path. Here are the top three things you should be aware of when considering international surrogacy.

Possible legal complications – If you are thinking about going to another country for surrogacy, consider the potential emotional and financial cost if you run into complications. Depending on your situation, you may not be able to bring your baby back to the United States or you may have lengthy delays before you can return. International surrogacy is complex and doesn’t have clear protections. Do your research to understand what legal rights the surrogate will have if any, and how the county protects LGBT couples. Consult with a lawyer that specializes in international surrogacy prior to moving forward so that you can be knowledgeable about the situation ahead of time.

Possible breach of contract – Even though all parties sign a contract in the beginning, it is still possible for a surrogate to violate her end of the agreement. There is a risk the birthmother could voluntarily have an abortion without the consent of the intended parents or refuse to have an agreed-upon abortion when recommended by the physician. It is also possible that the surrogate could use drugs, consume alcohol or fail to follow other behavioral restrictions laid out in the contract. In the case of Santos and Lake, the surrogate decided to back out of the contract all together after the baby was born.

by Eric Rosewood,, April 28, 2016

Click here to read the entire article.

Gay Family Planning: Options For Your Family

For thousands of New York couples each year gay family planning is a daunting and intricate process. If you are part of a same sex couple, there are extra complications as you must decide what route to go down in order to have or adopt a child.

Gay family planning options include adoption, a surrogate NYC carrier, pregnancy by donated sperm, or IVF. Here we cover the basics for each of these options to help you consider the right option for your family:


There are over 130 adoption agencies in New York State, and each of the 58 social services unit districts has an adoption unit. There are no fees for adopting children who have special needs or are in custody of the local social services commissioner, although there may be fees for adopting those children in the legal guardianship of local voluntary agencies. The fees are based on the adoptive family’s income, however, and help may be available in the form of grants or fee waivers, so don’t let finances put you off from looking into this as an option to start your family.

gay adoption

After deciding on an agency, the application forms must be completed. Information is taken about your current family, your background and the type of child you feel you would be able to give the best life to. Criminal history checks will also be made, with particular attention paid to whether someone in the prospective adoptive family’s home has previous mistreated or neglected a child. A criminal record does not necessarily mean that you will be refused for adoption, as it depends on several factors including the type of crime committed.

Within four months of submitting the application, a home study is started and carried out on the prospective adoptive family. This is a series of meetings, training sessions and interviews that enables the family and social services to ascertain the readiness of the family to adopt, and any issues that they may need help with. After the home study has been completed the caseworker writes a summary about the family, which the adoptive couple can also add comments to. Training is also required to cover some areas that are specific to adoptive parenting, such as the needs of foster children and what kind of child they would be most suited to as a parent.

Once the study and summary are complete, the work then begins to match the family with a child. There is no set process for this as it is individual according to the child’s situation and needs. The Family Adoption Registry provides information about waiting children, and adoptive parents can ask for more information about children they are interested in, in exchange for a copy of the home study. The process goes from there and hopefully ends with a child or children finding a loving home with their new parents!

Pregnancy via sperm donor

Lesbian couples have many options in their own gay family planning. Sperm donors may be someone known to the couple or, alternatively, screened samples from a sperm bank. Donors can be anonymous or known, and even with anonymous donors there is usually information available about the donor’s height, hair colour, eye colour, education level and nationality. Ensuring that you use an approved fertility clinic is essential in order to avoid potential diseases that can be transferred through sperm. If you are using a known donor, insist on having him medically pre-screened before insemination and it is a very good idea to consult with an attorney familiar with known sperm donation.

Traditional Surrogate

gay surrogacy

Traditional surrogacy involves the sperm of the intended ‘adoptive’ parent fertilizing the egg of the traditional surrogate, so the child will be biologically related to both parties. Surrogacy contracts in NYC are not legally binding as they are declared ‘contrary to public policy’. This means that you cannot pay someone to carry a baby for you, or create a contract that mandates that the traditional surrogate mother has to give the child to the intended parents, (IPs) upon delivery. Surrogates, whether traditional or gestational, cannot accept money apart from expenses and medical fees directly related to the pregnancy, and heavy fines are levied for anyone involved in a surrogacy agreement – $500 for those involved and up to $10,000 for anyone found to be arranging such contracts (which are void and unenforceable in NYC).

Despite this, surrogacy has continued to be a pathway to family life that many gay male couples choose to take, and there are agencies that help to match potential parents with potential surrogates who live in other, surrogacy-friendly States. When needed, New Yorkers are able to complete second or step parent adoptions in New York to finalize parental rights for a child that has been delivered through a surrogate from another State.

Gestational Surrogate

The difference between gestational and traditional surrogacy is that the baby resulting from gestational surrogacy is not related to the surrogate mother. An egg and sperm create an embryo which is then transferred to the surrogate via IVF. For a male same sex couple, both partners can contribute sperm so that each have an equal chance of being biologically related to the child; they would also need a female third party to donate the egg.

Having the options of different pathways for gay family planning (adoption, surrogacy or pregnancy via donor sperm) can be reassuring to a couple looking to have children, but it can also be overwhelming when trying to decide what is best for you. For a reputable and trustworthy attorney in New York who specializes in helping same sex couples have families, call Anthony M. Brown, head of Nontraditional Family and Estates division of Albert W. Chianese & Associations, at 212-953-6447 or email questions to

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Surrogacy Workshop Part 1: Planning Your Journey / 2015 SF MHB

Men Having Babies created this Surrogacy Workshop in order to take a broad look at the crucial decisions and milestone gay men face in their pursuit of biological parenting. It outlines some of the typical steps and milestones parents go through, presented chronologically and as a decision-tree.



Initial research:

Check web, come to Planning Biological Parenthood meetings, speak to surrogacy veterans, and attend free consultations with agencies and watch this surrogacy workshop video. While you do not have to make all of the following decisions upfront, you may want to keep these questions in the back of your mind:

  • Consider surrogacy versus other options like adoption, foster care, shared parenting.
  • Consider Traditional Surrogacy (TS) versus Gestational Surrogacy (GS).
  • These options vary considerably in process, cost, duration, legality and likely future relationships with the surrogate /egg donor.
  • In TS, a surrogate is carrying a baby conceived through artificial insemination using the sperm of one of the intended parents. In GS, a carrier is impregnated with embryos created through IVF (In Vitro Fertilization), using the couples’ sperm and donated eggs.
  • If you decide on GS, consider various options for egg donation: unknown, known (donors who are open to meeting the children or providing additional medical history information should the need arise in the future), or even from a family member or a friend.
  • If you are a couple, think of paternity options: should one of you provide the sperm, or should you mix your samples before the insemination /fertilization? If you are doing IVF, you can fertilize half of the eggs with each sperm sample, so that the paternity of each embryo can be known, and you can choose to implant embryos from both dads.
  • Think ahead of your desired family makeup: are you likely to want to go through the process again in the future for a sibling? Would you like to maximize the possibility of having twins in the first round?
  • Consider options for establishing parentage: will you be seeking second parent adoption? Are you interested in a pre-birth order?
  • Understand the likely timeline for each scenario, and possible setbacks: the chances that you may need more than one cycle to achieve pregnancy, having to consider changing the egg or sperm donor, or even a carrier, and the possibility of a miscarriage.

Once you researched and considered these and other issues, you may be ready to decide: what professional help will you require in your process? Will you try to keep outside help to the minimum (the Independent Track)? Will you employ a full service agency – or maybe just a lawyer? Will you first choose a clinic?

See more at