Like countless New Yorkers, I spent my 20’s running in the rat race by day and enjoying life in the big city by night. Family planning was the furthest thing from my mind. But in 2014, I got married and within a year, set down to the task of starting a family. Little did I know how much of a task it would turn out to be.
I remember thinking back to 8th grade health class and sex ed, and figured I would get pregnant easy peasy and be on my way. That was not the case. I soon found myself to be one of the many (surprisingly many!) people with fertility challenges, and the next few years took me on a roller coaster ride of pregnancy loss (3), IVF injections, a diagnosis of Asherman’s Syndrome, a hysteroscopy procedure, estrogen patches to build up my uterine lining, 2 egg retrievals, ICSI to create embryos, PGS testing, innumerable missed days from work and lots and lots of tears. I had the greatest doctors helping me and still… my body was a failure.
Eventually in 2016, my sister, a long-time labor & delivery nurse who had seen it all approached me and said “you know, if you need a surrogate to carry a baby for you, I’d do it.” My head spun. I had never really considered it… although my doctor was starting to make mention that we might be headed down that path. And so, in November 2016, after my 2nd egg retrieval and 5th failed attempt at trying to get my uncooperative uterus prepared to accept an embryo transfer, I found my way to an option most people rarely think about and, before February 2021, could rarely take advantage of in New York: Gestational Surrogacy. My sister became our fantastic, generous surrogate (unpaid, as paid surrogacy was illegal in NY at the time), and in the fall of 2017, she gave birth to our amazing daughter.
My life changed forever—not just the lack of sleep and focus shift towards caring for this tiny new little human—but professionally I had a new passion. I was a lawyer who had spent several years in child welfare law and then in insurance litigation, but a switch went off and I wanted more. My eyes were opened wide to the plights of those dealing with infertility and to those who, because of gender and sexual orientation could not just get pregnant easy peasy and be on their way. The medical science was there. We just needed better laws and a better process. And I wanted to be part of it. So after getting out of the “baby years” of raising an all-time-consuming kiddo, and with the forced pause from the rat race due to Covid-19 (silver lining?), I turned my focus, followed my heart, and opened a law firm dedicated to family formation. The law in NY caught up.
In February 2021, a new law, the “Child Parent Security Act” went into effect which has changed the whole ballgame in NY in many critical ways (too many really to address here!). For one, paid gestational surrogacy (not using the surrogate’s own egg) has become a legal option, and those who don’t have the great fortune of a sister like I did, can now hire a surrogate in NY to carry their child. This will allow for more meaningful participation in the pregnancy, rather than being hindered by the distance and difficulty of looking outside the state for a surrogate, which was previously the only option in this arena. And, not to be overlooked, NY now allows for a pre-birth Judgment of Parentage, which removes many of the uncertainties and difficulties of children of surrogacy being born with no legal connection to their intended parents, as had been the case in NY (and was the case for my daughter). Truly a great step forward for gay men and others like myself with fertility issues.
The new law in NY also impressively changes the landscape for women in the LGBTQ community who seek to become parents through assisted reproduction. Now, when there is reciprocal IVF (one’s egg being carried by the other partner) or even traditional IVF (gestating partner carrying her own egg), a second-parent adoption is no longer needed for the non-gestating partner to establish their legal rights and obligations as to the child. Partners now have the option in NY (once certain residency/birth eligibility requirements are met) to petition a court for a Judgment of Parentage, declaring their parentage even pre-birth. Not only will this allow both partners to be on a birth certificate, but will establish legally-binding parentage which will protect the family structure regardless of whether partners move or travel, or if protections for the LGBTQ community changes in the future. (Anything can happen, so it’s important to safeguard against this!)
The New York law was a long-time in the making and while it wasn’t available for me and my family when we embarked on our surrogacy journey, it is truly an exciting time for family creation in New York, and I am thrilled for all the new families who will be created out of it!
*This is for informational purposes only, and not intended to be legal advice. Always seek the advice of a locally-licensed attorney to help you decide what’s right for you.
Jennifer Maas, Esq. is a family formation attorney in New York. She founded and runs the Law Office of Jennifer P. Maas, PLLC, a small, boutique law firm focused on providing specialized attention and compassionate representation to all people looking to start or grow their families in New York. You can learn more about her and her practice at: www.JPMfertilitylaw.com