Opinion: New York needs better regulation of commercial surrogacy and sperm and egg donations

Sometimes advances in science and technology can truly astound, opening up possibilities that our grandparents would never have imagined. The current state of assisted reproductive technology is one such example. Assisted reproductive technology includes procedures such as in-vitro fertilization (IVF), intrauterine insemination, intracytoplasmic sperm injection and other technologies that make building a family possible today for parents who would otherwise be unable to have children. With the help of egg and sperm donors (also called gamete donors) and gestational surrogates, those who are single, LGBTQ, cancer survivors or experiencing infertility issues are now increasingly likely to have the children they want.

In 2021, the Child-Parent Security Act legalized gestational surrogacy in New York state. It established a legal and regulatory framework that allows intended parents to build their families and gain legal parental rights to any children conceived through assisted reproduction or surrogacy arrangements immediately upon birth.

However, though the Child-Parent Security Act took a step toward providing necessary regulation and oversight of the rapidly advancing and expanding field of assisted reproductive technology, the state Legislature still has critical work to do to ensure that everyone involved – parents, surrogates, gamete donors, and, especially, children – have their rights and health protected.

That’s why I am introducing nation-leading legislation that will strengthen and build upon New York’s existing surrogacy law to help ensure that surrogacy and gamete donation arrangements work for everyone involved, including donor-conceived people and individuals born through surrogacy.

With increasing rates of infertility and steep price tags for infertility services, assisted reproductive technology has become a lucrative industry. In 2020, 79,942 infants conceived through assisted reproductive technology were born in the United States. The U.S. donor egg IVF services market was valued at $487 million in 2018. Globally, the assisted reproductive technology market was valued at $25.7 billion in 2022. The so-called “fertility tourism” market in the U.S. was valued at $66.5 million in 2021.

My co-author Arthur Caplan has been sounding the alarm for years about the ethical, legal and social issues raised by commercial surrogacy and gamete donation. Surrogacy and gamete donation agreements are not comparable to the typical contracts people sign when buying a car or hiring landscaping services. These agreements involve sometimes vulnerable people who undergo significant medical procedures and take on serious health risks to provide their gametes or carry a surrogate pregnancy and give birth, but who are not the legal parents of the resulting children.

Specific concerns that Caplan and other bioethicists have raised center around issues such as: the risk of exploitation of surrogates and gamete donors, who are often lower-income people; whether participants are truly able to give fully-informed consent; compensation amounts vs. fees charged and profits earned by the industry; transparency of identity disclosure options and implications; and privacy rights and genetic disease transmission.

These concerns are well-founded, based on research, personal accounts and media reports of gamete donation and surrogacy issues that have arisen around the world and in the U.S. for years, which include: surrogacy agreements that place rigid restrictions on surrogates’ behavior; gamete donors being enticed by offers of larger amounts of compensation than they actually receive; surrogates and egg donors experiencing severe health complications and loss of fertility; surrogates and gamete donors receiving inconsistent and insufficient information before signing a contract; egg donors being threatened with having to reimburse screening and medical costs if they cancel an egg retrieval cycle, even for medical reasons; and surrogacy and gamete donation agreements that do not include sufficient protections for surrogates and egg donors in particular. These are just some of the examples of problems that can arise with these complex contracts.

The bill that I’m introducing in the state Legislature would directly address these and other concerns. 

Specifically, it would enhance medical, legal, and financial protections for surrogates and intended parents, and establish these protections for the first time for gamete donors and intended parents who participate in gamete donation agreements. It would also establish a comprehensive informed consent process to help ensure that all parties fully understand how surrogacy and/or gamete donation work, the risks involved and their rights before they enter into a surrogacy or gamete donation agreement. For the first time, the bill would create a Bill of Rights for Donor-Conceived and Surrogate-Born Individuals to ensure they can access information about their origins and the medical information they may need. Finally, it would provide for regulation of gamete donation agreements, marketing and business and clinical practices, and establish timely gamete donation policies to provide oversight of a rapidly advancing area of health care.

Market analysis of the assisted reproductive technology industry forecasts that it will continue to evolve and grow exponentially, which creates new social and societal considerations regarding the children born through these technologies. Even now, for example, some donor-conceived people are discovering that they have upwards of 50-100 or more donor siblings, which increases the risk of becoming romantically involved with a half-sibling.

People who are donor-conceived may struggle emotionally with finding out that a parent is not their biological parent or with not being told they were donor-conceived, as well as with understanding who they are if they do not have any information about a gamete donor. In some cases, donor-conceived people may need to access the medical information of their gamete donor to help with their own medical diagnosis and treatment.

My new legislation would establish timely policies to address these issues, including limits on the number of children that can be conceived using the gametes of a single donor and born in New York. It would also prohibit non-identified gamete donation starting in 2026 and require that the non-identifying medical information of gamete donors be made available to donor-conceived people upon their request once they turn 18. 

Now is the time to establish these critical protections for all New Yorkers involved in assisted reproductive technology and surrogacy. The state Legislature must do its due diligence to ensure that this rapidly expanding industry is safe and respects the rights, needs and long-term interests of all participants.