The Laws, They Are A-Changin’

Laws often lag behind societal mores. This has certainly been true for people who look to surrogates and egg donors, to help them build their families. 

Now that a new, brightly lit year is upon us, we wondered what changes in the legal landscape are in store for hopeful parents. Changes in state laws, as well as potential alterations to existing laws at the national level, may be coming. Some of these will be cause for celebration. To provide you with accurate legal updates you can trust, we turned to two attorneys, Amy Demma and Parham Zar based on opposite ends of the United States for their input.

Amy Demma is a New York licensed attorney and founder of Law Offices of Amy Demma. Parham Zar is the Founder and Managing Director of the Egg Donor & Surrogacy Institute (EDSI). 

New York State’s Surrogacy Law

YMM – Let’s start with the much-awaited changes to New York State surrogacy law. There was much fanfare last year when proactive changes were announced. Can you tell us more about this, and when hopeful parents expect the new ruling to go into effect?

AD: “For background, on April 2, 2020 the New York Legislature passed the Child-Parent Security Act (CPSA). On April 3, 2020 Governor Cuomo signed the CPSA into law. 

This law will become effective on February 15, 2021. 

The CPSA lifts the ban on compensating a gestational surrogate (in which the woman carrying the embryo does not provide her genetic material, the egg) in the state of New York, providing New York state residents a legally safe and efficient path to parentage via gestational surrogacy. 

The new law also allows for a low-cost, easy and reliable path for single women to be recognized as a sole parent of any children resulting from assisted reproduction technology. 

The CPSA is a comprehensive piece of legislation which addresses not only gestational surrogacy, but also, clearly defines who is a gamete donor and who is a gestational carrier.

Most importantly, it defines “parentage.” The CPSA addresses assisted family building through egg, sperm and embryo donation as well as gestational surrogacy. 

Traditional surrogacy – where the carrier contributes her genetic material (her egg) to the pregnancy -  is currently banned under New York law and will remain so under the Child-Parent Security Act. 

Lastly, and perhaps the most innovative aspect of the CPSA, is the codification of a Surrogate Bill of Rights which includes a mandate for health insurance and independent legal counsel at the expense of the intended parents, while acknowledging the gestational carrier’s right to autonomy with respect to medical decisions and the right to withdraw from the surrogacy arrangement, without penalty, at any time prior to a pregnancy being established.” 

PZ: “Gestational surrogacy has essentially been banned in the State of New York since 1992 and under the current law, paid surrogacy is punishable by a fine, and unpaid surrogacy agreements are unenforceable and not legally binding. When Governor Cuomo pushed to change this last year, he introduced a bill that would legalize paid gestational surrogacy contracts for New Yorkers. 

What this means is, New York’s intended parents no longer are required to look for carriers outside of the state of New York, and sometimes thousands of miles away. It will provide same-sex couples and people struggling with fertility the ability to conceive a child with the help of assisted reproduction and streamline Second Parent Adoption. This law gives the strongest protections in the nation to gestational surrogates.” 

Amy Coney Barrett and the Supreme Court 

YMM - The confirmation of Amy Coney Barrett as an associate justice to the U.S. Supreme Court was concerning to some intended parents, who worried that her conservative leanings would adversely affect the laws surrounding infertility treatments, including IVF (in vitro fertilization). Do we need to worry?

PZ: “With the shift of the conservative majority on the Supreme Court to six- to- three, it might pose some potential threats to IVF and third-party production rights. However, I do not see the confirmation of Hon. Amy Coney Barrett as drastically changing our field. 

Justice Barrett’s appointment comes with some concerns, based on her religious and conservative views. However, currently, issues like surrogacy and egg/sperm donation are for the most part determined individually, by the states. 

Even if a case were to be heard by the Supreme Court, it is very likely that the originalists on the Court would want this decision to remain with the states. 

The appointment of Justice Barrett is a sign that progression of reproduction rights may come to a halt, but I am hopeful that, as more individuals learn about the value and true reasons why a very special human being chooses to help those who struggle with fertility, the more our country will see why these third party reproduction services are so necessary.” 

AD: “While our assisted family building colleagues and most importantly, our patient advocate groups, are right to vocalize concerns over conservative appointments to the Federal bench as well as the Supreme Court, to date, we have not seen Ms. Barrett opine as a sitting Supreme Court Justice in a manner threatening to ART. 

However, there may be a concern. The matter of personhood, which defines an embryo as a person from the moment of fertilization, complete with Constitutional protections, is top-of-mind for those of us who are watching. 

The “personhood” ballot was an initiative cast in Colorado in 2008. Those fighting for “personhood” have now gained national momentum. If successful, the “personhood” ballot would limit medical services provided by reproductive endocrinologists and their staffs, including the possible regulation of embryology practices. 

So, how does “personhood” make its way to the Supreme Court? Likely through a challenge to the protections currently provided under Roe v. Wade. 

A reconsideration of Roe, by a conservative court, has the potential to not only outlaw elective termination and limit access to birth-control but also, if embryos are found to be “persons,” impact access to care for the one in eight Americans needing medical assistance to build a family.” 

How will the Legal Landscape for ART Change in 2021? 

YMM – What’s next? Are there any changes in reproductive law we can expect in 2021? 

AD: “I am not sure one can predict legislative outcome, but there is hope for continued, progressive law-making that will have benefit for the infertility community. 

For example, there are several bills pending on Capitol Hill that include:

• an insurance mandate for fertility medical services
• benefits to veterans needing medical assistance for family building
• protections against discrimination in adoption practices
• allocation of funding for scientific research on medical conditions like polycystic ovarian syndrome

It’s a great list! Whether these initiatives will ultimately become law and when is not as yet clear. Individual people can help, by letting their legislators know that these issues are important to them.  

I do expect we will see other states follow New York, in either updating or drafting statutes that address the complexities of not only surrogacy, but all of ART.” 

PZ: “There are changes in reproductive law we can expect in some states. 

In August of 2020, a handful of states passed fertility insurance coverage laws which typically are not included in most policies. Thirteen states - Arkansas, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island, and Utah - agreed to include IVF coverage. 

This is a tangible step in making infertility treatments more affordable and accessible. I expect more states to follow, and to expand insurance coverage for infertility treatments.”

A Legal Wish List 

YMM – What about laws we wish would be passed, but that don’t seem to be on the horizon. What’s your wish list for ART law? 

PZ: “We obviously would love for everyone to have access and guaranteed rights to third party reproductive rights, and assisted reproductive services, in every state in the country. 

My state of California has been the leader, with establishing highly ethical policies and laws for gestational surrogacy, providing the blueprint for other states to follow. 

I founded EDSI with the philosophy that parenthood should be widely accessible whether one is straight, gay, single, or living internationally and should be accompanied with the highest level of care and service at a reasonable cost. However, this is something that should not only be available in the U.S. but throughout the world.  

It breaks my heart knowing so many struggle just to build a family. Issues such as access, coverage, and equity in treatment are all ones I wish were on the forefront agenda; however, I am hopeful the times ahead will soon lead to the advancement of reproductive rights, on many different fronts.” 

AD: “One of the most unique aspects of the Child-Parent Security Act is the licensing and regulation of “surrogacy programs,” otherwise referred to in a non-legal sense as “agencies.” Under New York law the term “agency” has a distinct legal definition. It differs from that which describes service providers who bring together gestational surrogates and intended parents. So, in the CPSA, these service providers are known as “surrogacy programs.” 

As a patient advocate, I have been a proponent of surrogacy program (agency) regulation, and regularly counsel intended parents to be aware of consumer risk when engaging a “surrogacy agency.” 

In most states, a person or entity wishing to provide surrogacy matching services can do so with little-to-no barriers to entry. Few such programs are subject to municipal (state or city) oversight. There is little, if any, accountability as to how surrogacy services are provided to consumers. 

I am grateful for the work being done by our colleagues at SEEDS: The Society for Ethics in Egg Donation and Surrogacy as they establish “standards” for best agency practices but while impressive, these “standards” are only guidelines. 

The ARTs law group at the American Bar Association (ABA) drafted a superb “model act” which, too, defined best practices for these surrogacy programs but, like SEEDS, the ABA has no regulatory authority – simply put, neither SEEDS nor the ABA make law. 

I am hopeful we will see more states follow New York in establishing actual surrogacy agency regulation and encourage those at the grass-roots level looking to make positive change in assisted family building law to consider the work being done by colleagues at patient advocacy groups and other professional organizations.” 

Amy Demma is a New York licensed attorney and founder of Law Offices of Amy Demma, providing services to those engaged in assisted family building, specifically egg, embryo and known sperm donation as well as compassionate surrogacy. Law Offices of Amy Demma opened its doors in 2010. In 2005, Amy founded Prospective Families Egg Donation Agency; Prospective Families was acquired by The Donor Source in 2010. Amy and her husband are the blessed parents of 21- year old twins conceived through assisted means.

Parham Zar is the Founder and Managing Director of the Egg Donor & Surrogacy Institute (EDSI) and a leading expert within the third party assisted reproductive industry. Over his 20-year tenure at EDSI, Parham has guided thousands of intended parents to bring their dream of parenthood to fruition. He is deeply invested in creating a more compassionate and open dialogue around infertility and reproductive challenges; issues that commonly impact individuals and couples around the world.