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Report: Gay Surrogacies Could Rise By 15 Percent Following DOMA

by Peter Rizzo
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Saturday Aug 10, 2013
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June 26, 2013, is all but assured a spot in the history books.

While future Americans will likely understand the implications of the day with clarity, today, the entirety of what was set in motion when the Supreme Court overturned part of the Defense of Marriage Act - and sent California’s reviled Proposition 8 back to the lower courts to meet a similar fate - remains unclear.

The only thing that’s certain is that change will be set in motion. Mostly, as MSNBC suggested, by the long and messy process of trial and error, with the thousands of specific cases that will result from interstate variations in law being decided as they arise.

One issue that remains clouded by the present is DOMA’s affect on gay surrogacy. This is partly because surrogacy, when a woman agrees to carry another couple’s child for money, is still a murky issue for all Americans.

The Center for America Progress notes that while Arizona has a ban on surrogate pregnancies, states such as Virginia and New Hampshire allow the practice provided certain regulations are followed. In New Hampshire, a surrogate mother can legally decide within 72 hours of giving birth if she wants to keep the child. In Virginia, surrogates must have previously been married and have "delivered at least one live birth."

California has allowed the practice to flourish for both straight and gay couples. There, clinics have been happy to mediate between surrogate mothers and gay couples, provided they can afford the $88,000 to $150,000 price tag that comes with securing a genetic connection to their child.

Dr. Jeffrey Steinberg, a pioneer of in-vitro fertilization and the founder of the Fertility Institutes, has been helping same-sex couples have surrogate children since 1986 when he established the first of his company’s locations in California.

Dr. Steinberg is best known for helping couples conceive "designer babies," a somewhat sensational term that denotes babies whose sex was chosen by the parents. The resulting news stories ignited another national conversation about whether physicians should assist aspiring parents by providing trait selection services.

For more on how the DOMA reversal will affect gay surrogacy, EDGE spoke Dr. Steinberg, for his take.


DOMA Won’t Alter State Regulations

Dr. Steinberg operates four clinics, two of which are in the United States. How these two facilities operate, and will continue to operate following DOMA, paints a picture of the current industry climate, however.

Dr. Steinberg noted that surrogacy is still illegal in New York for all residents, despite past moves to overturn the regulations supported by the gay community. The result is that for East Coast couples, all arrangements are made in New York, but the actual procedure takes place in California with a California surrogate.

DOMA, Dr. Steinberg said, won’t likely affect how these two clinics operate.

"California has been good for the word go. California basically says if you want to have a baby, have a baby, just make sure no one gets sick from this...," Dr. Steinberg said. "We’re hoping [surrogacy will become legal in New York], but there’s no room in the New York legislature that I know of to do anything."


Gay Surrogacy Will Become More Common

Dr. Steinberg does expect that DOMA will bring more consumers to his clinics, and is compiling research to back up his hypothesis.

Dr. Steinberg told EDGE that his data suggests 85 percent of interested same-sex couples went ahead with the procedure before DOMA, while 15 percent told his clinic that they wanted to wait until they were legally married.

"That 15 percent is now clearly starting to call," Dr. Steinberg said. "It’s just like hetero couples, some couples don’t want to have babies until they’re married."

Dr. Steinberg remains uncertain of whether he’ll publish the findings.

"There’s still 20 percent of people out there who aren’t happy with gay surrogacy, and if we publish that paper, we’re going to lose that 20 percent," he said.

He indicated he’d be more inclined to publish the findings with a consortium of clinics, but cited issues with this approach because of the low number of clinics that offer the service to gay couples.

With the increase in demand, Dr. Steinberg suggested the cost of surrogacy would likely rise as well.

"As demand goes up, it’s hard to get surrogates, you’ve got to pay the surrogates more money," he said.


Will There Be A Push For Clarity On Surrogacy?

Still, with DOMA toppled, the question remains whether gay activists will shift their attention to surrogacy as they have done in Israel.

Surrogacy is illegal for same-sex couples in Israel, and as a result, many have taken to traveling to India for the procedure. This changed, however, when India recently limited the procedure to heterosexual couples.

Steinberg does believe that states sitting on the fence will move to make surrogacy legal, but he isn’t overly optimistic that the issue will gain momentum stateside.

"My gut feeling is there’s not going to be a change anytime soon," Steinberg said. "The states that don’t allow it are really hardcore conservative states, and I don’t see them swinging around."


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