This is the third in a series of articles that I have co-authored about surrogacy. See Surrogacy in New York: Boon or Bane?, N.Y.L.J. (July 17, 2018; Surrogacy Agreements Approved by New York … With Provisos, N.Y.L.J. (July 24, 2020). In this article, I address Baby M and its legacy, advances in surrogacy that led to New York's enactment of the Child-Parent Security Act, financial and emotional ramifications of surrogacy, and unintended consequences worldwide.

Over the past three decades, New York's public policy and attitude about surrogacy has come a long way. The story of surrogacy began with a tragedy—the 1980s case of Baby M (Matter of Baby M., 109 N.J. 296 (1988)) where a traditional, or genetic, surrogacy agreement resulted in a tumultuous lawsuit between the traditional surrogate mother (egg donor) who refused to surrender the baby girl upon her birth (the surrogate mother's egg had been inseminated with the intended father's sperm) and the intended parents. In the aftermath of this case, New York enacted legislation in 1992 prohibiting any kind of surrogacy agreement, as did several other states. All surrogacy arrangements were considered violative of New York's public policy, and commercial surrogacy arrangements (where the surrogate is paid) were frowned upon to such an extent that, pursuant to DRL §123, effective in 1993, all parties involved, including the attorneys, could be subject to civil and/or criminal penalties.

Despite that public policy, by a mere two decades later, it was estimated that several thousand babies were born in the United States via gestational surrogacy every year. Clyde Haberman, Baby M and the Question of Surrogate Motherhood, The N.Y. Times (March 23, 2014). In April 2020, in a reversal of its prior total ban, the New York State Legislature passed the Child Parent Security Act (CPSA) (FCA §581 and subsections) (Gov. Andrew Cuomo signed it into law). New York had been one of three states that still banned surrogacy agreements, along with Louisiana and Michigan. With the enactment of the CPSA, commercial gestational surrogacy would be protected by law, and the gestational surrogate could be compensated. While the CPSA did not extend to or cover traditional or genetic surrogacy, changes in our social, legal, and political landscapes over the decades, as well as medical advances in assisted reproductive technology, mandated the relaxation of the ban and the enactment of a law that would permit gestational surrogacy and protect the gestational surrogate.