The most fundamental ethical duty owed by any health professional is: “First, do no harm.” It is therefore alarming that so many doctors engaged in the most lucrative and fastest growing of medical practices—fertility medicine—are willing to flagrantly disregard this fundamental duty. Lured by the riches offered to them by wealthy individuals seeking convenient procurement of children through surrogacy transactions, these doctors appear to have few if any qualms in participating in entirely elective high-risk medical procedures that subject healthy young women serving as surrogate mothers or egg-providers--and children borne of surrogacy transactions--to grave risks of harm, while extending to them no health benefits whatsoever. Governor Cuomo’s proposed legislation to legalize commercial surrogacy in New York State (the “Cuomo Proposal”) will dramatically increase, still further, the generous remuneration enjoyed by New York based fertility specialists, even as it will also greatly increase the risk of grave harm to vulnerable women who would serve as surrogates or egg providers, as well as the children produced in surrogacy transactions.
We know that tens of thousands of American women are now serving as surrogates in high-risk pregnancies, and that thousands more young women are selling their eggs to facilitate these surrogacy pregnancies. We also know that large numbers of American women have suffered grievous harm from complications directly related to their surrogacy pregnancies, and that a number have in fact died as a result of those complications. We are also aware of many egg providers who have experienced rare cancer, ovarian cysts, endometriosis, and other negative health effects as a result of high-dose hormone injections and other procedures involved in harvesting their eggs.
But we have no means of knowing the total number of surrogate mothers and egg providers who have suffered such harms or who have died, because there is no requirement that any of these injuries or deaths be collected, recorded, or tracked. These harms are further shrouded in secrecy, when non-disclosure and confidentiality provisions are common in surrogacy contracts, as are provisions mandating private arbitration proceedings to resolve disputes in lieu of open court proceedings.
Understandably, the fertility and surrogacy industries have no wish for the public to know the extent of the dangers and harms involved in their highly profitable surrogacy practices. Rather than making this information publicly available information, and supporting research that might quantify and document these harms, the fertility and surrogacy industries conceal this information, while also misrepresenting and minimizing the health risks to women and children involved in surrogacy transactions.
The Cuomo Proposal continues to permit this concealment--and the protection such concealment affords these powerful industries--by providing only for the establishment of a “voluntary central tracking registry” to gather and maintain data related to surrogacy transactions, including those resulting in severe injury and even death. The Cuomo Proposal also has no problem permitting the existence of non-disclosure agreements and private arbitration proceedings that serve to further restrict disclosure.
We already know from their secretive behavior to date that this kind of information will never be voluntarily shared by these powerful industries. By refusing to collect or disclose this information, we will never know the extent of the harm inflicted on the thousands of vulnerable women lured into surrogacy transactions.
For a woman to be eligible to serve as a surrogate, the Cuomo Proposal imposes only three requirements: that she must have “completed a medical evaluation with a health care practitioner,” that she be either a US citizen, a lawful permanent resident, or “other habitual resident,” and that she be “at least 21 years old.”
These eligibility requirements are woefully inadequate to ensure that women who agree to take on the risks of surrogacy are even minimally fit to do so.
Although she must have “completed a medical evaluation,” nothing in the Cuomo Proposal requires that a would-be surrogate be disqualified, even if that medical evaluation demonstrates that she is physically, mentally, or psychologically unfit to assume the risks of surrogacy. Because this “medical evaluation” need only be administered by a non-specific “health care practitioner,” there is no requirement that she be evaluated by a doctor, or by any health care practitioner possessing any expertise in fertility medicine, or psychological evaluations, or assessments of mental aptitude.
The bottom line is that nothing in the Cuomo Proposal would preclude a woman from serving as a surrogate, even if she were under extreme duress and profoundly vulnerable to coercion. She might be a young mother who is homeless, or on the brink of homelessness. She might be a woman who depends on welfare—or begging in the street—to get by. She might be an older woman—in her fifties or sixties—who has no other means of securing money to live on. She might be a woman under the control of an abusive intimate partner or a pimp or a surrogacy trafficker. Nothing in the Cuomo Proposal would protect women in such circumstances from entering into surrogacy arrangements, even when they feel compelled to enter into them as a matter of survival, and have no ability to insist on the terms of the surrogacy contract being fair or reasonable.
The dramatic increase in multi-birth rates in the United States resulting from the increase in surrogacy pregnancies was recognized as a “cause for concern” in a recent report entitled “Gestational Surrogacy: A Call for Safer Practice” appearing in the Fertility Sterility Journal (VOL. 106 NO. 2 / AUGUST 2016). The obstetric gynecologists authoring the article state that single-embryo transfers are performed in only 15% of all surrogacy transfers, and that two-embryo transfers are much more common in surrogacy arrangements, “leading directly to the multiple gestation and preterm risks” documented in this same report. They go on to report that where multiple embryos were transferred in surrogacy arrangements, “the risk of premature delivery was many times higher for multiples than for singletons,” and “it is a well-documented fact that multiple-gestation pregnancies are associated with a significantly higher risk of hyperemesis, gestational hypertension, gestational diabetes, anemia, preterm labor, hemorrhage, cesarean delivery, and cesarean hysterectomy than singleton pregnancies.”
Sounding the alarm that a “significant number of [surrogates] and the resulting children are being exposed to the increased risks associated with multiple-gestation pregnancies,” the authors explain that such multiple-gestation pregnancies result in over 30% of the deliveries being preterm and with 42% being twins, triplets, or more children. The report urges fertility doctors “to do our utmost to ensure the medical safety” of “surrogates and resulting children,” emphasizing that “one of the most effective means for achieving this goal is to minimize the number of multiple gestation pregnancies by maximizing the use of elective single-embryo transfer.”
The report pointed to a major reason for such risky multiple pregnancies: limiting the number of embryos transferred increases the out-of-pocket expenses for those who desire more than one child. Since a single surrogacy transaction can cost in excess of $100,000, a ‘‘two for the price of one’’ arrangement “ may be appealing to intended parents.”
Notwithstanding the well-known fact that surrogacy pregnancies involving the implantation of multiple embryos result in grave health risks to surrogate women and any resulting children--as documented and elaborated in this report and many other medical reports-- nothing in the Cuomo Proposal restricts the number of embryos that can be implanted in women serving as surrogates.
Although the health risks of pregnancy would be dramatically reduced for both surrogates and surrogate offspring if a surrogate were allowed to use her own egg in a surrogacy pregnancy, this is expressly forbidden in the Cuomo Proposal. By requiring the use of donor eggs in surrogate pregnancies, surrogate women and surrogate offspring face much greater risk of harm.
In a report entitled “Clinical and immunologic aspects of egg donation pregnancies: a systematic review,” for example, based on 79 research papers and authored by a team of scholars from leading medical institutions from around the world, the following conclusions were reached:
In a report entitled, “Fertilization and Self-Oocyte In vitro Fertilization: A Retrospective Cohort Study, Department of Obstetrics and Gynecology” AIIMS, New Delhi, India, the following conclusion was reached:
“Egg donation should be treated as an independent risk factor for hypertensive disorder in pregnancy. Women should be informed of the risks, and egg-donor pregnancies should be managed in high‐risk obstetric clinics.”
In a report published in the American Journal of Obstetrics and Gynecology entitled “Risk of Severe Maternal Morbidity by Maternal Fertility Status: a U.S. Study in Eight States”, based on a sample size of 1,477,522 pregnancies and births, the following conclusions were reached:
A study in the prestigious journal Fertility and Sterility, comparing the experiences had by the same woman between her spontaneous pregnancy and her surrogate pregnancy, reached the following conclusions:
Even when a surrogate mother is carrying just one child— a singleton—she as well as all other IVF-assisted pregnant women face an increased risk of severe maternal morbidity compared with spontaneous pregnancies, as well as an increased risk of preterm delivery, stillbirth, spontaneous abortion, preeclampsia, placenta previa, and having to deliver by caesarean section. Single children born via IVF also have more health risks than do single children who have been spontaneously conceived, including premature birth, low birth weight, and birth defects.
“The majority of problems we see with assisted reproductive technology are multiple births, but even singletons have higher risk of complications,” stated NICHD medical officer Uma M. Reddy, MD, MPH, the lead author reporting the findings of an expert panel convened in 2005 by the U.S. National Institute of Child Health and Human Development.
When surrogate mothers and IVF-assisted mothers carry more than one child, however, the risks to both them and the children dramatically increase still further, and to a far greater extent than those faced by mothers who naturally conceived and are carrying multiple children.
Notwithstanding the much greater risks a surrogate will inevitably face, 85% of all surrogacy pregnancies in the USA involve multiple embryos being transferred to a surrogate mother for her to carry, in order to increase the likelihood of a successful outcome, including being able to procure additional children for the price of one.
Even if only a single embryo is transferred to a surrogate, however, she is still more likely to end up carrying multiple fetuses than is a woman in a spontaneous pregnancy, as it is well known that IVF pregnancies are more likely to result in identical multiples resulting from a fertilized egg splitting after transfer.
Health care experts have estimated that medical costs for delivery and newborn care can be as much as four times greater for twins than for single babies, and the amount increases to twelve times higher for triplets.
Even in spontaneous pregnancies where conception takes place naturally without any use of artificial reproductive technology and where the woman is fit and healthy by every known metric, it is not uncommon for complications to arise. Unlike organ donors, for example, who might part with one of their two kidneys or part of their liver to support the life of another, a woman while pregnant gives over the full use of all of her organs and bodily systems to support the life of another, and for a much more extended period of time. Given this profound invasiveness, it is not surprising that pregnancy can sometimes overwhelm even the sturdiest female body.
Some of the more common complications arising during even a spontaneous pregnancy include anemia, gestational diabetes, high blood pressure, preeclampsia, placental abruption, hyperemesis gravidarum, urinary tract and other infections, miscarriage, and preterm labor.
Because we know that these risks greatly increase in surrogacy pregnancies, however, it is very important to understand what each risk entails.
The Cuomo Proposal, by requiring that all surrogacy pregnancies use donor eggs, and by freely permitting surrogate pregnancies using multiple embryos, needlessly subjects surrogate mothers to life-threatening complications , including all of those discussed below.
In many cases, high blood pressure that can develop during a woman’s pregnancy does not harm the woman or child, and dissipates several months after childbirth. But it does raise the woman’s risk of high blood pressure in the future, and if severe, can also result in low birth weight or preterm birth of the child. Some women with more severe gestational hypertension, however, go on to develop preeclampsia. Preeclampsia is one of the leading causes of maternal morbidity and mortality worldwide.
Studies show that women pregnant with donor eggs, which is true of all surrogates, have a more than three-fold risk of developing pregnancy induced hypertension and preeclampsia. Egg-donor pregnancies are independently associated with increased pregnancy-induced hypertension, ranging from 16% to 40% of cases.
A recent study found that surrogate pregnancies, per se, also posed an independent increased risk of preeclampsia and gestational hypertension when compared with pregnancies of other IVF-assisted mothers and naturally conceived mothers. For reasons not yet studied or understood, women such as surrogate mothers who become pregnant at any time with a new partner are at still at greater risk of preeclampsia. Having babies less than two years or more than ten years apart—as is the case with many—perhaps most--- surrogate mothers, also leads to a still higher risk of preeclampsia.
Women carrying twins or more—also very common in surrogacy pregnancies—are more than twice as likely to develop preeclampsia as single pregnancies, and half of all triplet pregnancies develop preeclampsia.
Preeclampsia usually begins after 20 weeks of pregnancy in women whose blood pressure had been normal, but can also present as late as four to six weeks after the birth of the child. Preeclampsia can lead to serious—even fatal—complications for the pregnant woman, including the following:
Because preeclampsia affects the arteries carrying blood to the placenta, the unborn child is at risk of receiving inadequate blood and oxygen, as well as fewer nutrients. These deficits can restrict fetal growth and result in low birth weights and preterm births.
Women with severe preeclampsia often must undergo immediate deliveries to save their lives, regardless of the baby’s prematurity.
Studies have shown that women who had preeclampsia during pregnancy that ended in preterm delivery had an eight fold higher risk of death from cardiovascular disease compared with women who did not have preeclampsia and delivered at term. There is also a significant risk to these women of preeclampsia recurrence in future pregnancies, and there is an increased lifetime risk of chronic hypertension and stroke in women who experienced preeclampsia during pregnancy.
Placental abruption is a serious condition in which the placenta separates from the wall of the uterus before birth. It can separate partially or completely. If this happens, the baby may not get enough oxygen and nutrients in the womb, and the woman may have serious bleeding. Placental abruption is three times more likely to occur in a multiples pregnancy and in women who have had previous caesarean sections..
Placental abruption was also found to be a significant risk factor for long-term cardiovascular mortality.
Gestational diabetes occurs in about 5 percent of singleton pregnancies, but women pregnant with twins are twice as likely to experience it. The use of donor-eggs in a pregnancy has also been found to be an independent factor in increasing the risk of gestational diabetes. If untreated, gestational diabetes can cause serious health problems for the pregnant woman and any offspring.
During pregnancy, the placenta, which connects the fetus to the woman’s blood supply, produces high levels of various hormones, almost all of which impair the action of insulin in her cells and raise her blood sugar level. In gestational diabetes, the placental hormones provoke a rise in blood sugar to a level that threatens the growth and wellbeing of the fetus, and typically afflicts the woman with nausea, blurred vision, fatigue, frequent vaginal, bladder, and skin infections, and loss of bladder control.
Gestational diabetes also increases a woman’s risk of high blood pressure, as well as preeclampsia. A woman who develops gestational diabetes is more likely to get it again during any future pregnancy, and she is also more likely to develop type 2 diabetes as she gets older.
The health risks that gestational diabetes poses to an unborn child are still graver, including pre-term birth and respiratory distress syndrome. Because babies of mothers with gestational diabetes also tend to experience excessive weight, they are more likely to require early delivery or caesarean section delivery in order to reduce the risk of becoming wedged in the birth canal or sustaining birth injuries, as well as to protect the mother.
Babies of mothers who have gestational diabetes also have a higher risk of developing obesity and type 2 diabetes later in life.
Most pregnant women—70% to 80%—experience some type of morning sickness. Severe morning sickness, better known as hyperemesis gravidarum,—resulting in severe nausea, vomiting, weight loss of 5% or more of pre-pregnancy weight, headaches, confusion, fainting, jaundice, extreme fatigue, low blood pressure, rapid heart rate—affects about 1 percent of pregnant women. Studies, however, have demonstrated a high correlation between hyperemesis gravidarum and multiple-fetus pregnancies, which are common for surrogate women. One study, for example, showed an incidence rate of 25.9 per thousand for twins compared to 5.1 per thousand for singletons.
Women with prolonged hyperemesis gravidarum have a greater risk of preterm labor and preeclampsia, and often require hospitalization. There is no known cure for this affliction.
When pregnant, the volume of blood in a woman’s body increases by as much as 50 percent to support both her and the growing unborn child, with the needs of the fetus always met first. Iron deficiencies to the woman herself often result, which causes anemia, and typically leave her feeling tired, weak, dizzy, and unable to concentrate. Anemia can also cause shortness of breath, headaches, rapid or irregular heartbeat, and greater difficulty combatting infections.
Severe anemia poses graver health risks. Pregnant women with severe anemia are twice as likely as those without it to die during or shortly after pregnancy. In addition to greatly worsening the symptoms described above, severe anemia greatly increases the risk of other serious complications, including poor fetal growth, preterm birth and low birth weight. Severe anemia also increases the likelihood that blood transfusions will be needed during delivery.
Anemia is more than twice as common in multiple pregnancies as in a single birth, which means there is a greater than 50% chance that surrogate mothers carrying multiple fetuses will experience anemia during their pregnancy.
A phenomenon called the vanishing twin syndrome is more likely in multiple pregnancies and often happens in the first trimester, often accompanied with bleeding. The risk of pregnancy loss is higher in later trimesters as well.
A 2014 study from the Journal of Perinatology found a 4--5 fold increase in stillbirths from pregnancies that were achieved through assisted reproductive technologies.
A woman’s likelihood of having to deliver twins by means of caesarean section delivery is 50-50. The rate of caesarean section deliveries in egg donor pregnancies, when compared with spontaneous pregnancies, showed an increase that ranged from 40% to 76% of cases.
Recent research shows that caesarean section deliveries appear to cause an overall 80% increased risk of severe maternal complications when compared with vaginal delivery, which can include the following:
When a surrogate mother finds herself carrying multiple fetuses, physicians will often recommend—and intended parents may often request—that she undergo a selective reduction to reduce the number of fetuses she is carrying to just one or two, in order to increase the chances of a successful, full-term pregnancy and the delivery of a healthy baby.
The reduction procedure is generally carried out during the first or second trimester of pregnancy and often takes two days. The fetuses are evaluated--first by ultrasound, then often by amniocentesis or chorionic villus sampling--to help determine which fetuses are accessible for the procedure, and whether any fetuses are unhealthy. Once the specific fetuses to be reduced are identified, potassium chloride is injected into the heart of each selected fetus under the guidance of ultrasound imaging. The heart then stops and the fetus dies as a result. If the fetal material is not reabsorbed into the woman’s body, a D & C procedure may be required to remove it, or it may stay in the woman’s womb until the remaining children are born.
Needless to say, selective reduction raises many complex and weighty issues, and the pressure put on a surrogate mother to make a decision favored by both intended parents and attending physicians—each of whom are likely to have a very strong point of view—can be extremely intense.
Many pregnancy-related medical complications appear to resolve at delivery or shortly thereafter. But women who develop complications are known to be at increased risk of developing similar complications in future pregnancies, and are also known to have increased risks of long term medical complications whether or not they become pregnant again.
An extensively-researched report entitled “Long-Term Effects of Pregnancy Complications on Maternal Health: A Review,” published in the Journal of Clinical Medicine in August 2017 documented a “clear association between various obstetric complications and long-term effects on maternal health.” Women with a history of adverse pregnancy outcomes were found to be at increased risk of:
The report cited studies showing that women who had preeclampsia during pregnancy that ended in preterm delivery had an eight fold higher risk of death from cardiovascular disease compared with women who did not have preeclampsia and delivered at term. The report concluded that “in order to decrease the risks of long-term effects on the health of women with history of preeclampsia, women with history of preeclampsia and the medical staff caring for them during the following years need to be familiar with these risks and act to modify them.”
The report documented recent research that shows that these pregnancy-specific complications continue to affect maternal health long after the index pregnancy, and even if the woman has no further pregnancies. The report found that there is an increased lifetime risk of chronic hypertension, cardiovascular disease, and stroke in women who experienced preeclampsia during pregnancy.
The report concluded that “it is clear that many obstetric complications are associated with increased risk of long-term maternal morbidity, “ and that “to improve women’s health and decrease such risks, both women themselves and the medical team caring for them need to be aware of these risks,” and “multiple interventions” over time may be required to help decrease these risks.
The maternal mortality rate in the USA has been steadily rising—the only developed country where this is true. The USA maternal mortality rate more than doubled from 1991 to 2014, and American women have the greatest risk of dying from pregnancy complications among 11 high-income countries. Over 700 women die of complications related to pregnancy each year in the USA, even though two-thirds of those deaths are preventable. An additional 50,000 American women suffer from life-threatening complications of pregnancy. Black women in the USA are three to four times more likely to die in childbirth than white women. According to the World Health Organization, black mothers in the U.S. die at the same rate as pregnant women in Mexico or Uzbekistan.
Although New York State’s national ranking in maternal mortality improved from 46thin 2010 to 30th in 2016, its current maternal mortality ratio remains unacceptably high, and the maternal death ratios among black women residing in New York State are three to four times higher than among white women.
Needless to say, given the heightened health risks associated with surrogacy pregnancies, enactment of the Cuomo Proposal will further increase New York State’s documented high maternal mortality rates. And overwhelmingly, it will be women of color who will undeniably bear the brunt of a vastly expanded and exploitative marketplace of wombs that will result.
The growth rate in the number of surrogacy offspring now far exceeds that of IVF pregnancies. The American Society for Reproductive Medicine reported a 30% increase in surrogate births in the USA between 2004 and 2006, for a total of 1,059 live births in 2006.Though few statistics are available, commercial surrogacy is increasingly prevalent in the USA, with the number of babies born to gestational surrogates growing 89% percent from 2004 to 2008. Industry experts estimate that the actual numbers are much higher since many surrogate births go unreported. In a 2016 report published in the “Fertility and Sterility” journal, the author states that in the past 15 years, the number of gestational cycles increased by more than 470%, and a large majority of clinics—69.4%--now offer this treatment. Another trend is an increase in cross-border reproductive care, or ‘‘medical tourism,’’ involving gestational surrogacy, with 18.5% of GC cycles performed for non-U.S.- resident intended parents.
More than half of all surrogacy arrangements in the USA involve the use of purchased eggs, and any surrogacy pregnancy permitted by the Cuomo Proposal would require the use of donor eggs. The going rate to a woman for providing a cycle’s worth of eggs in major cities is $8,000 to $10,000 --although those who have high SAT scores, or who are athletes or musicians, or who have other desirable traits—can earn a great deal more.
Although there are no exact figures for how many young women engage in egg-retrieval-for-pay, the numbers are at least in the thousands. Many of these women are in their early twenties – often university students in need of cash to cover their tuition fees, or under-employed young women. But what most of these women, as well as the general public, don’t realize is that there are no good long-term safety data that would enable any young woman to make a truly informed choice.
Speaking of egg providers, Timothy R. B. Johnson, the longtime chairman of the department of obstetrics and gynecology at the University of Michigan Medical School, stated: “There is a total lack of information about the long-term [effects].” “No one’s collecting the data” on donors, he said, adding that the fertility industry is largely unregulated. Once their eggs are retrieved, donors are sent home with little or no follow-up.
The process of egg provision involves injecting high doses of hormones that cause the ovaries, which normally produce only one egg a month, to produce dozens. This can
lead to ovarian hyperstimulation syndrome, a potentially serious complication associated with abdominal pain, nausea, blood clots, potential surgical repair of the ovaries, ovarian cysts, endometriosis, and other negative health effects.
One drug frequently used to suppress ovarian function (before the ovaries are “over-stimulated” to produce multiple eggs that can then be harvested and fertilized) is leuprolide acetate (Lupron). The U.S. Food and Drug Administration has not given approval for this particular use of the drug, and thus its use during egg retrieval protocols remains “off label.” But as reported in an article entitled, “Opinion: A Call For Protecting The Health Of Women Who Donate Their Eggs,” the authors found that “[i]n various surveys of younger women engaging in so-called egg “donation,” it appears that this fact about off-label use is rarely shared. Probably few, if any, of these young women know about the 300-page review of many Lupron studies that were submitted to the FDA in 2011, documenting a plethora of problems, some long term.”
The American Society for Reproductive Medicine recommends that women not undergo ovarian stimulation more than six times, although there is no evidence that even six cycles are safe. Even so, because there is no system in place to track egg donors, there is no way to monitor how many times a woman has produced eggs for money and women have reported undergoing more than 15 cycles. The lack of follow-up of egg providers means that we have no idea if multiple rounds of ovarian stimulation during the prime reproductive years will affect women’s later health. Although there have been numerous reports of egg providers suffering from infertility and hormonally related cancers, none of these suspected harms are being investigated.
A 2013 editorial in the Journal of the American Medical Association, a peer-reviewed medical journal published 48 times a year by the American Medical Association, noted that “more complete data on both short- and long-term outcomes of donation are needed so donors can make truly informed choices and, once those data are available, mechanisms can be put in place to ensure that the donor recruitment and consent process at clinics is conducted according to the highest ethical standards.”
Even back in 2007, a New England Journal of Medicine “Perspective” piece noted, “If women are going to donate eggs, we must ensure that their health is not compromised. We need, therefore, to subject egg donation to far more scientific scrutiny than it currently receives. We need more longitudinal studies of the drugs involved in ovarian hyper-stimulation, for example, more long-term follow-up of egg donors, and deeper analyses of the conditions under which dangerous complications occur.”
Notwithstanding possible severe health risks faced by egg providers, whose eggs will be required in any surrogacy transaction contemplated by the Cuomo Proposal, young women who would serve as egg providers are entirely unrecognized and unprotected by the Cuomo Proposal.
We know that the health risks faced by surrogate women are greater than those involved in traditional pregnancies and standard IVF pregnancies, by virtue of the fact that the medical literature conclusively demonstrates increased health risks in egg-donor pregnancies as well as pregnancies involving multiple fetuses, both of which typify surrogate pregnancies. But there are still virtually no studies that address either the short-term or long-term health risks involved in surrogacy pregnancies, per se, just as there are no studies that address possible severe health risks faced by egg providers.
Unlike infertile women who are considered patients, surrogate mothers and egg donors are treated by the fertility medical community as vendors. When they walk out of a fertility clinic, no one keeps track of them. None of the harms they experience either short-term or long-term are reported, and so the short-term and long-term risks of surrogacy pregnancies and egg donations remain unknown, therefore making truly informed consent an impossibility.
Only studies sponsored by independent researchers, the government, and other responsible entities can provide the evidence that is currently lacking. But nothing in the Cuomo Proposal calls for these kinds of studies, or requires that they be undertaken before exposing women to the risks they face as would-be surrogate mothers or egg providers.
We know that children who are carried and delivered in high-risk pregnancies are much more likely to arrive with both short-term and long-term health deficits. The most common complication of multiple pregnancy is preterm birth. More than one half of all twins are born preterm. Triplets and more are almost always born preterm. Infants conceived through egg donation also have higher odds for premature delivery, for being small for their gestational age, and having lower Apgar scores compared to spontaneously conceived infants.
The higher the number of fetuses in the pregnancy,the greater the risk for early birth. The earlier in pregnancy your babies are born, the more likely they are to have health problems. Premature babies are born before their bodies and organ systems have fully matured, and often require help breathing, eating, fighting infection, and staying warm. Very premature babies--those born before 28 weeks--are especially vulnerable. Many of their organs may not be ready for life outside the mother's uterus and may be too immature to work well.
Premature birth can lead to a number of problems, including:
Multiple studies have found that children born from surrogacy pregnancies require more frequent stays in neonatal intensive care units, where the average length of stay with hospital charges was several multiples beyond that of a term infant conceived naturally. When compared to spontaneous pregnancies, surrogate pregnancies of a singleton or twin resulted in hospital charges 26 times higher, and 173 times higher when triplets or more were born.
Children born too early and too small are also more likely to have a host of life-long health complications as well, including:
Children born in multiple births are about twice as likely as singleton babies to have birth defects, including neural defects (like spinal bifida), cerebral palsy, congenital heart defects, and birth defects that affect the digestive system.
Children born through the assisted reproductive technology may also be at increased risk for high blood pressure as adolescents, as well as certain types of cancers. One study found that he overall cancer rate of IVF children was about 17 percent higher than for non-IVF children, and the rate of hepatic tumors was over 2.5 times higher among IVF children than non-IVF children.
A study in the Journal of Child Psychology and Psychiatry also found that “surrogacy children showed higher levels of adjustment difficulties at age seven” and hypothesized that “the absence of a gestational connection to the mother may be more problematic.” Young adult children born via anonymous gamete donation can also suffer from serious genealogical bewilderment, according to both empirical studies and actual testimonies.
The Cuomo Proposal provides that “the surrogacy agreement must include information disclosing how the intended parent will cover the medical expenses of the person acting as surrogate and the child. If health care coverage is used to cover medical expenses, the disclosure shall include a review of the health care policy provisions related to coverage for the person acting as surrogate and the child, but only funds for base compensation and “reasonably anticipated” expenses are required to be placed in an escrow account.
The Cuomo Proposal also provides that a surrogate “has the right to a health insurance policy that covers major medical treatments and hospitalization as well as a surrogate pregnancy,” and that the policy shall be paid for, “whether directly or through reimbursement or other means” by the intended parents, “if such policy comes as an additional cost” to the surrogate.
The Cuomo Proposal also requires intended parents to “pay for or reimburse” the surrogate “for all co-payments, deductibles and any other out-of-pocket medical costs associated with pregnancy, medical evaluation, psychological screening, or embryo transfers that accrue through 12 weeks after the birth or termination of the pregnancy,” except that this responsibility will be extended for six additional months in the event that “a medical complication related to the pregnancy is diagnosed within 12 weeks after the birth of the child or termination of the pregnancy.”
Although the Cuomo proposal contemplates that the required health insurance covering the surrogate, as well as premiums and deductibles and out-of-pocket expenses related to the pregnancy, are to be paid for by the intended parents, the intended parents are left with the option of paying all of these expenses through reimbursement rather than directly or in advance. But what if something goes awry and an intended parent chooses not to--or is no longer able to—reimburse a surrogate mother for these expenses? Especially when these expenses may amount to a great deal more than the intended parent could ever have envisioned, given the high incidence of complications arising in high-risk surrogacy pregnancies that require extensive medical intervention?
Assuming that these medical interventions cannot be “reasonably anticipated,” it will often be the case that the funds required to be placed in escrow by the intended parents will be insufficient to cover them. And as a practical matter, a very pregnant surrogate with small children at home who may reside a considerable distance away may not be in a position to get to the NYS Supreme Court to demand reimbursement or to contest any breach of contract in a timely manner—if at all—and thus may face having to pay these expenses herself, or forego critical medical care if she cannot pay.
Although the Cuomo Proposal provides that a surrogacy agreement is required to include information disclosing how the intended parent will cover the medical expenses of a surrogate mother and surrogate children, it doesn’t require that an adequate dollar amount be set aside or put into escrow to cover these expenses, or that reliable mechanics be put in place that guarantee prompt, adequate payment or reimbursement, or even a showing that the intended parents have the financial means to pay for all of the expenses that might arise in addition to the cost of
the health insurance policy itself. Although the Cuomo Proposal also provides that an intended parent must “agree to assume responsibility for the support of all resulting children immediately upon birth,” there is no requirement that the intended parent demonstrate that they have the financial means to pay for all of the expenses that might arise in connection with supporting those children.
And as discussed in great detail earlier, complications—even very serious complications-- resulting from a surrogate’s pregnancy are not always detected and do not always surface within the first 12 weeks following her pregnancy. But if they remain undetected within that 12 week period, or fail to arise until after that time period has passed, the Cuomo Proposal leaves the surrogate mother entirely on her own to bear all medical costs---or suffer the complications because she cannot afford to pay for the medical care she needs. Because the Cuomo Proposal also fails to require that any short or long-term disability insurance be extended to a surrogate mother, a woman suffering postpartum complications that prevent her from being gainfully employed will be especially unlikely to be able to afford the medical care she needs.
Although the Cuomo Proposal, if enacted, will dramatically increase the number of egg providers that will need to be lured into providing eggs required for commercial surrogacy transactions, the proposal itself does not extend any protection whatsoever to the young women who may feel compelled, because of financial hardship, to undergo the risky procedures entailed in the harvesting of their eggs.