Anti-surrogacy laws gain ground on 'baby sellers' nTC Challengers say last hopes are worth a fight.

July 28, 1992|By New York Times News Service

In the five years since Mary Beth Whitehead-Gould attracted national attention by refusing to relinquish custody of the child she had borne as a surrogate mother, efforts to curb the baby-bearing industry have been gaining momentum nationwide.

Last month, New York became the 18th state to sharply restrict the practice, as legislators who call it baby selling outvoted those who see it as a legitimate last hope.

In many ways, the debate in New York was even more emotional than most because the surrogacy business has been most active there.

Similarly, the reaction in New York has been fiercer. Brokers, infertile couples and potential surrogates are vowing to find loopholes in the new law, sign their contracts in other states, or, if necessary, go underground to have their babies.

Studies have estimated that 40 percent of all surrogate births in the country have been in New York.

And a report released in the spring by the state's Department of Health estimated that 4,000 infants have been born in the United States through surrogacy arrangements, at a cost of $33 million to contracting couples.

Surrogacy as it currently exists in the United States is made possible by brokers whose business it is to match infertile couples with women willing to be surrogates. The couple pays a fee of about $16,000 to the broker in advance, between $10,000 and $20,000 to the surrogate after the birth of the baby, and all expenses not covered by the surrogate's medical insurance, everything from maternity clothes to plane fare.

Under New York's law, which Gov. Mario M. Cuomo signed last week, it would still be legal for a woman to carry a baby for another couple, but the payment to the broker and to the woman would be illegal and the contract would not have legal standing in court. Only the payment of medical expenses would be allowed. A broker who accepts a fee faces a fine of $10,000 for a first offense. The couple who pays the fee and a surrogate who accepts it face $500 fines.

"The purpose was to eliminate the practice of commercial surrogacy," said Anna Maria Cugliari, a spokesman for the Governor's Task Force on Life and the Law, which drafted the basic legislation.

Critics of surrogacy say their primary objection is that a baby is being "sold" for a $10,000-to-$20,000 fee.

"The reality is that money is being exchanged for a child," said Assemblywoman Helene Weinstein, D-Brooklyn, who sponsored the bill.

Proponents argue that prospective parents are paying for the surrogate's time, not buying a baby.

"The process can take two years," said Betsy Aigen, who runs the Surrogate Mother Program Inc., a Manhattan agency that has overseen 32 surrogate births for seven years. Dr. Aigen has just chosen a surrogate to carry her own child after six years of infertility.

When other states banned or restricted surrogacy, agencies simply moved elsewhere.

Dr. Aigen said she had been offered space in fertility clinics in Maryland, Connecticut and Pennsylvania, where surrogacy is still legal. She probably will accept one of those offers, she said, but also plans a creative interpretation of the New York law.

She and her lawyer, Christian O. Basler, who is also a client, say that the law as written defines surrogacy contracts as ones in which the fee is contingent on surrendering the child. A contract that pays a woman simply to have a child, they believe, is legal.

"So you say, 'We'll pay you $10,000 to have a baby and we'll let the chips fall where they may,'" said Ms. Basler, who, according to Dr. Aigen, is considering a test case.

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