While plenty of New Yorkers have formed families by gestational surrogacy, they almost certainly worked with carriers living elsewhere. Because until early April, paying a surrogate to carry a pregnancy was illegal in New York state.
The change to the law, which happened quietly in the midst of the state’s effort to contain the coronavirus, capped a decade-long legislative battle and has laid the groundwork for a broader movement in pursuit of what some activists have termed “fertility equality.”
Still in its infancy, this movement envisions a future when the ability to create a family is no longer determined by one’s wealth, sexuality, gender or biology.
“This is about society extending equality to its final and logical conclusion,” said Ron Poole-Dayan, the founder and executive director of Men Having Babies, a New York nonprofit that helps gay men become fathers through surrogacy. “True equality doesn’t stop at marriage. It recognizes the barriers L.G.B.T.s face in forming families and proposes solutions to overcome these obstacles.”
The movement is led mostly by L.B.G.T.Q. people, but its potential to shift how fertility coverage is paid for could have an impact on straight couples who rely on surrogates too.
Mr. Poole-Dayan and others believe infertility should not be defined as a physical condition but a social one. They argue that people — gay, straight, single, married, male, female — are not infertile because their bodies refuse to cooperate with baby making.
Rather, their specific life circumstances, like being a man with a same-sex partner, have rendered them unable to conceive or carry a child to term without medical intervention. A category of “social infertility” would provide those biologically unable to form families with the legal and medical mechanisms to do so.
“We have this idea that infertility is about failing to become pregnant through intercourse, but this is a very hetero-centric viewpoint,” said Catherine Sakimura, the deputy director and family law director of the National Center for Lesbian Rights. “We must shift our thinking so that the need for assisted reproductive technologies is not a condition, but simply a fact.”
Fertility equality activists are asking, at a minimum, for insurance companies to cover reproductive procedures like sperm retrieval, egg donation and embryo creation for all prospective parents, including gay couples who use surrogates. Ideally, activists would also like to see insurance cover embryo transfers and surrogacy fees. This would include gay men who would transfer benefits directly to their surrogate.
In Delaware and New Hampshire there is limited insurance coverage for these services, but the written requirements make it nearly impossible for L.G.B.T.Q. people to qualify for it. The goal of the movement is coverage for all people in the United States.
“This entire process falls far outside the way insurance companies traditionally think about health coverage,” said Ms. Sakimura, who helped draft legislation in 2013 to ensure existing fertility services are equally accessible for L.G.B.T.Q. people in California. “They cover a person and their body, but surrogacy requires companies to shift that coverage onto someone else’s body.”
Davina Fankhauser, the co-founder and president of Fertility Within Reach, a nonprofit, said, “There is precedent for medical procedures to be performed on a non-covered person by another subscriber’s insurance on a limited basis. Most commonly, we see this practice with living organ donation.”
Miguel Aguilera is a 36-year-old Marine Corps captain who served in Afghanistan and Iraq. Because of injuries sustained in combat, Captain Aguilera, who is gay, qualifies for fertility services, like in vitro fertilization, from the U.S. Department of Veterans Affairs.
In 2018 Captain Aguilera, who is stationed at a Marine Corps base in Jacksonville, N.C., began thinking about fatherhood and taking advantage of his benefits. But “the V.A. told me they only offer these procedures to male soldiers who are married to women,” he said, referring to services like testing, hormone therapy and artificial insemination, and that surrogacy was not a covered benefit.
The policy dictated that the couple must not only be married, but also that one partner “must have an intact uterus and one functioning ovary,” while the other “must be able to produce sperm.”
“But what about gay men?” Captain Aguilera said. “Why aren’t we on equal footing? The whole process made me feel like giving up my dream of becoming a parent.”
Million-Dollar Babies
For those who can afford it, the six-figure cost to have children via surrogacy is a fair price to realize what once seemed impossible. “I am part of a whole generation of gay men who thought they would not have kids,” Andy Cohen, 52, the Bravo host and new father, said in a phone interview, acknowledging that he is “a privileged guy with access to the money and resources needed to do surrogacy.”
But some would-be gay male parents see this high price of parenthood as a penalty for not being straight. (Sperm donation and intrauterine insemination, commonly used by lesbian couples, are comparatively inexpensive procedures.)
“Part of the reason I hesitated to come out was because I equated being gay with being unable to have a family,” said Mario Leigh, the 23-year-old founder of Affordable Families, a fertility-rights coalition in Connecticut. “Which is why I’m taking action preventively to ensure that this is not the case.”
A recent Marist College graduate who works at Raytheon Technologies, an aerospace defense company in Windsor, Conn., Mr. Leigh is waging a legislative battle to ensure his access to fertility.
Aided by Representative Liz Linehan, the chair of the Connecticut legislature’s Committee on Children, his organization is developing a bill that would lead the nation in inclusive language and insurance coverage. “We want to secure affordable coverage for anyone who desires a family,” Mr. Leigh said.
Mr. Leigh began envisioning his own fertility journey while watching reality television. “I saw ‘Million Dollar Listing New York’ star Fredrick Eklund and his husband welcome twin daughters via surrogate in 2017,” Mr. Leigh said. “Seeing Eklund become a father was incredibly enlightening and felt like the missing piece I needed to begin thinking about how I could also have children.”
Mr. Leigh was relieved to know that science was on his side. But he knew how easily he could be priced out of parenthood by the high cost of surrogacy, and that he couldn’t possibly be the only person facing those costs with fear.
“It’s a social justice issue, and young people are leading today’s social justice movements,” said Ms. Linehan of access to fertility care. “It’s also a fiscal issue, this is also about fiscal injustice. How will young L.G.B.T.s form families if they cannot afford it?”
Fertility Equality Overseas
The fertility-rights movement is further along outside the United States. Two years ago, tens of thousands of Israelis marched in protest after Prime Minister Benjamin Netanyahu’s government — under pressure from religious political parties — denied full fertility and surrogacy rights to unmarried men. With same-sex marriage still unrecognized by Israeli courts, this policy disproportionately affected L.G.B.T.Q. people, though many of the protesters were straight.
“Since the advances in marriage equality, anti-gay efforts have gone in two directions, attacks on transgender rights and, like in Israel, attacks on L.G.B.T. families,” said Mark Gevisser, whose new book, “The Pink Line: Journeys Across the World’s Queer Frontiers,” will be published later this month.
“Opponents will say, ‘We’re not homophobic. We oppose discrimination in the workplace. You deserve the right to dignity,’” Mr. Gevisser said. “But this openness stops at raising children.” The protests further animated a nationwide conversation about Mr. Netanyahu’s administration and its deference to ultra-Orthodox Israelis, who view legislation that condones homosexuality as violating Jewish law.
“These protests made us question our sense of liberalism and progressivism as a nation,” said Mickey Ouzen-Depas, a member of the board of the Israeli Gay Fathers Association. “But we’ve passed the point of no return here in Israel,” he said. “The country is ready for fertility equality, and now the government needs to play catch up.”
The Israeli Supreme Court recently called for the law to be amended.
Numerous companies are filling the financial gap left by legislators. Multinational corporations like Facebook and Microsoft, for instance, now offer grants to Israeli L.G.B.T.Q. employees to help defray surrogacy costs. Fertility benefits have also become common in the United States, particularly in the tech sector. Unilever and the Bill & Melinda Gates Foundation also provide some of the most generous fertility benefits in the private sector.
“This is not a form of charity,” said Jeremy Seeff, a lawyer in Tel Aviv and the director of LGBTech, a local workplace diversity organization. “This makes perfect commercial sense because it helps companies attract and retain the best possible talent.”
‘Biology Is Real, Biology Exists’
In New York, a number of feminist activists do not share the belief that legalizing surrogacy increases gender equality. The most vocal opponents include Gloria Steinem and Deborah Glick, the first openly gay member of New York’s legislature, who view paid surrogacy as patriarchal, exploitative and even akin to slavery. Both women campaigned against legalizing surrogacy in New York State.
Much as with transgender rights, some critics contend that the quest for fertility equality erases women and denies their essential biological role. And though many surrogate babies are born to straight couples, some opponents of surrogacy are uncomfortable with connecting the purchasing power of men — especially gay men — to the bodies of women.
“We’re talking about the eradication of womanhood as we know it,” said Phyllis Chesler, a feminist and professor, whose 1988 book, “Sacred Bond: The Legacy of Baby M,” chronicled a high-profile surrogacy custody case. “Some people want to do away with reality, but biology is real, biology exists — and biology is what will get you pregnant.”
Sophie Lewis, the feminist theorist and author of “Full Surrogacy Now: Feminism Against Family,” sees surrogacy as much as a labor issue as a gendered one. “This is really about class, it’s a class issue — wealthy people paying less wealthy people,” she said. For her, it isn’t about women having a biological or even emotional right to the children they bear, but about them being compensated and treated fairly.
Michelle Pine, 39, a two-time surrogate in Klamath Falls, Ore., said that “while there are certainly opportunities for exploitation, working with agencies or groups that offer some regulation help take away that piece.”
Many of the activists seeking fertility equality are not wealthy enough to cover the full cost of surrogacy. Captain Aguilera, who recently completed law school and will soon retire from the military, is considering a home-equity loan to cover future surrogacy costs and has applied for financial support from Men Having Babies.
He’s also caught the activist bug. “Now that I passed the bar, I want to use my law degree to help change these unfair policies,” he said.
As for Mr. Leigh, for the past year he has set aside 25 percent of each paycheck for a special surrogacy savings account. “So far I don’t even have enough for a single round of I.V.F.,” he said.
“I’m only 23, so I’m not worrying just yet,” he added. “But the clock is ticking. I want to be a father by the time I turn 30.”
