Desperately Seeking Surrogates (New York Times, April 2)

Posted On April 2nd, 2022

The New York Times article on April 2, 2022 (“Desperately Seeking Surrogates”) has some accurate information contained within along with plenty of misguided and misleading statements.  Some key points:

  • Surrogate mother (gestational carrier) fees are NOT unregulated at all.  What they are not is “pre-fixed” (antitrust litigation in the third party area of fertility has made sure that won’t happen).  However, judges who issue parentage orders in surrogacy matters can and often do inquire as to the compensation and other costs which are paid.  There is judicial oversight – not the “wild west” atmosphere which is implied in the story.
  • When gestational carriers (“GC”) and intended parents (“IP”) are left to negotiate compensation on their own, it can often devolve into an unseemly and emotional exercise in bargaining.  IP are beyond eager for a child and know GC are in demand and the GC is aware that she is a scarce resource and is venturing into a negotiation with generally well-heeled and anxious benefactors.  Having set fees ahead of time – generous and known to all – eliminates this type of horse-trading and accomplishes the goals of both sides.  IP want their GC to know she is appreciated and being treated well.  GC wants to feel valued and respected for her vital contribution.

What is on the mark in this piece is the realization that there are fewer qualified carriers these days to go around.  More couples and singles (single men and women are intended parents, too) are looking to a gestational carrier for assistance, so – yes – there are supply and demand issues and – yes – costs are being driven up as a result.  But to contemplate offering a cash bonus to a carrier in order for her to get a Covid vaccine (after all this time) – which is apparently the posture of “some agencies” – is terribly short-sighted and simply wrong.  If a carrier candidate is not vaccinated, it serves, in our estimation, as a valuable litmus test relevant to her willingness to take care of herself and to follow the medical advice of her OBGYN.  She should be avoided, not incentivized with more money.  Even with all the worry, the cost, the waiting and the heartache, intended parents must never feel that they have to sacrifice confidence in their carrier’s health care and the care of their developing baby.

Sanford M. Benardo, Esq.
Northeast Assisted Fertility Group, Inc.


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