BUFFALO, N.Y. — Mark Ziemba and Nick Nenno are now in the process of renovating their home in Hamburg. While that's a lot of work, Ziemba and Nenno are admittedly excited. They're planning around the possibility of having children.
"Oh, the baby's going to be here...the baby's going to be there," said Ziemba with a smile on his face.
But the excitement is tempered with a lot of frustration.
The couple got married about a year and a half ago in Buffalo, and even before they tied the knot, having kids was high up on the priority list.
"We're just really excited to be parents," Ziemba explained. "I never was baby crazy until probably the last year. Now, it's like every time we're around babies, I'm just like, 'Ah! I want that so badly.' I'm so jealous...of people."
Nenno added, "We kind of started this process before a lot of our friends were even having kids, which is weird, and now a lot of (their kids) are like one, two years old. And we're kind of still just...stagnant."
They spent the past few years working through their options. Fostering didn't fit their longterm goals because of the possibility that the kids might return to their biological parents at some point. When it came to adoption, they had concerns, being a same-sex couple.
"It kind of put us under a microscope," Ziemba said. "We just didn't feel as though we needed to be under."
That led them to surrogacy.
But after attending conferences and poring over the latest research, a shocking realization. Finding a woman to carry their child, close to home, would not be easy. That's because New York is one of three states where paid surrogacy is expressly prohibited.
2 On Your Side looked for a lawyer in Western New York who might be able to explain what is legal in terms of surrogacy. It was definitely a heavy lift.
The closest attorney willing to speak to us was in Rochester. Gregory Franklin, with Ashcraft Franklin & Young, LLP, provides legal services to birth parents and adoptive parents in adoption and assisted fertility matters, like surrogacy.
"It's easier to answer the question by saying what is not legal," Franklin said. "It is not legal to compensate a woman for carrying a child for you...whether it's through adoption, whether it's through surrogacy, gestational carrying."
A Gestational Carrier is what a surrogate is called if the baby she is carrying is not biologically related to her. This means the fertilized egg implanted in her uterus is either from an "intended parent," the woman who will ultimately raise the child or from an outside donor.
This differs from traditional surrogacy, where the woman carrying the fetus uses her own egg.
Nearly all surrogacies in America have been gestational since the 1980s after a controversial court case erupted over a traditional surrogate who wanted to keep the child.
Paid gestational surrogacy is legal in 10 states and the District of Columbia. Most other states either allow surrogacy under specific circumstances or by default because they have no surrogacy laws.
In New York, you can still enter into a Compassionate Surrogacy agreement. Franklin represents a number of couples who have done this, "A close family member, a friend, co-worker...will say, 'I will be happy to carry the child for you.'"
But there are risks. Agreements of this kind aren't enforceable in New York. A compassionate surrogate can decide to keep the child even if she has no biological ties to the baby.
"You give birth to a child in New York," Franklin explained. "You are the mother."
For this reason, Ziemba and Nenno are looking out of state for a surrogate, specifically Canada, where their law would name them both parents before birth.
"Emotionally, I can't even imagine going through this process and then being told at the end of it, 'I change my mind,' and we're fighting for custody in court," said Ziemba.
Also, Canada's proximity to Western New York was a major draw.
"We want to raise a family in Buffalo," Ziemba explained. "This is where our families are from. So, it just stings to be in a state that doesn't want to...has not addressed this yet."
There are some moves being made in Albany now. The Child-Parent Security Act has been introduced in the state legislatures, and for the first time in 12 years, a bill to define parental rights and repeal the ban on paid surrogacy has some traction.
Governor Andrew Cuomo even threw his support behind the bill earlier this year including the bill in his state budget proposal.
But opposition is strong, from a mix of health advocates, feminists, and Roman Catholics.
"It's baby selling...pure and simple," Kathleen Gallagher told 2 On Your Side. She is the Director of Pro-Life Activities for the New York State Catholic Conference. "Unfortunately, there's a big fertility business booming out there, where baby brokers make large profits, and they're doing it by exploiting poor women...particularly poor vulnerable women. Young girls on college campuses, on military bases, etc. Poor women are going to be carrying babies for probably wealthy couples who want to have perfect babies."
She added further, "This is a form of human trafficking. It is exploiting women as breeders and incubators for other people's children and other people's benefit and for the benefit of the big fertility business. It's not reproductive justice."
Compensation for surrogates aside, attorney fees and agency costs alone can be substantial.
Ziemba is an army veteran and financial planner. Nenno is a special education teacher and ski racing coach. They already spent about $75,000 in agent costs, egg donor compensation, and fertilization. They expect to pay more than $100,000 by the time the first child is born and up to $150,000 by the birth of their second baby.
"For us, it's not about the financial, cause at the end of the day...if you don't have children, who do you leave it to? Where's your legacy?" said Ziemba of the increasing investment upfront. "We've made a lot of sacrifices to do that, obviously, but I don't even think about the money. It's stressful at times, but it's more the process...we just want to see it through."
While they feel blessed to have a total of 12 fertilized eggs ready to implant (six fertilized with Ziemba's sperm and six with Nenno's), so far, they've only had one surrogate contact them. Two weeks ago, she backed out.
"We so badly want kids," said an emotional Ziemba. "And we've invested so much and we really know we can be good parents, but there's not a clean path for us to get there...and it's hard."
What does compensation look like for a paid surrogate? We're told, it all depends on what's negotiated into the gestational surrogacy contract, but $35,000 is a fair estimate.
Gallagher believes the compensation is often much less and criticizes the Child-Parent Security Act for not addressing that, "It doesn't even offer the surrogate mother a minimum wage for the work that she's going to do in bearing that child and giving that child away."
There are protections for surrogates outlined in the bill, namely giving her exclusive rights to make health decisions for herself and the fetus, as well as the right to terminate the pregnancy or reduce the number of fetuses.
Gallagher says more considerations must be made, "There are a lot of health concerns with hyperstimulating a woman's ovaries to get an abundance of eggs by egg donors. There are a lot of health concerns with surrogate mothers carrying babies for other people. There's not a lot of longterm studies that have been done on what are the effects physically and psychologically on these surrogate mothers and on the egg donors and on the donor-conceived children. There's just so many unknowns here that New York State shouldn't dive into this right now."
The New York state legislature has just about seven weeks to bring the Child-Parent Security Act to the floor for a vote. The 2019 legislative session ends in June.
Survey of Western New York Lawmakers
Last week 2 On Your Side sent an e-mail to Western New York lawmakers, asking them six questions about where they stand on the issue of paid surrogacy. The vast majority of state senators and assemblymembers we heard from, while supportive of the parental rights portion of the bill, were against the idea of commercializing surrogacy.
New York State Senators' Responses:
57th District: Unrepresented
- Senator Cathy Young resigned her position in March to take a position at Cornell.
- The election for the next Senator will take place on Election Day, Tuesday, November 5.
59th District: Patrick Gallivan (R)
- Do you believe Commercial Gestational Surrogacy should be legal in the state of New York? I am opposed to any surrogacy arrangement in which the surrogate mother (or anyone else) is compensated beyond reimbursement of medical expenses.
- Why or why not?
- Have you heard from your constituents concerning the Child-Parent Security Act and/or repealing the ban on Commercial Gestational Surrogacy? No
- How do you plan to vote on the Child-Parent Security Act? Need to learn more and discuss with constituents prior to any vote.
- Do you agree with Governor Cuomo's decision to include the bill in his budget proposal? No, policy matters should not be included in the budget.
- After 12 years since the repeal was first proposed - do you feel confident the Child-Parent Security Act will pass/not pass? I do not know if this will come before the legislature for a vote this session.
60th District: Chris Jacobs (R)
Senate Bill 2071, the Child-Parent Security Act, currently sits in the Senate judiciary committee. The bill is a very complex piece of legislation that I believe requires additional research and analysis before determining if it should be moved out of committee and before the full Senate for a vote. Overturning existing law that has been in place for more than two decades and replacing it with an exhaustive new regulatory framework is a major undertaking and I look forward to examining both sides of this issue more thoroughly, including feedback I have received from constituents on this matter.
61st District: Mike Ranzenhofer (R)
- Do you believe Commercial Gestational Surrogacy should be legal in the state of New York?
- Why or why not? The legislation has been amended and there are currently differences between the Assembly and Senate bill. I cannot take a position until there is a final bill. I understand the surrogacy need for clear guidelines in relation to addressing issues of conflict and determining the rights and responsibilities of both the surrogate and parent. However, I do have concerns and do not believe that human births should become a commercial enterprise. We don't want to encourage someone to become a surrogate for the money without realizing the incredible responsibility to a child. I am concerned that these bills appear to be more focused on the adults rather than the child.
- Have you heard from your constituents concerning the Child-Parent Security Act and/or repealing the ban on commercial gestational surrogacy? No.
- How do you plan to vote on the Child-Parent Security Act? It is premature to make a decision at this point. As I said there should be greater clarity for all parties, but the devil is in the details. I am sure as the issue is discussed more, and after this story, I will hear from residents and organizations with their thoughts and concerns. I will continue to listen to the residents I represent and evaluate the issue.
- Do you agree with Governor Cuomo's decision to include the bill in his budget proposal? No. I know that it happens every year and that the courts have ruled it is OK but I have long supported efforts to remove non-fiscal matters from the budget. Important issues such as this deserve to be debated based on their own merits.
- After 12 years since the repeal was first proposed – do you feel confident the Child-Parent Security Act will pass/not pass? I never predict the outcome of legislation. Every year there are bills that stall and bills that advance that are unexpected.
62nd District: Rob Ortt (R)
The only outreach I received on this issue pertained to keeping the ban in place, which I support. I have serious concerns about the idea of creating a business out of surrogacy. Life is precious; it shouldn't be turned into a commodity as part of a monetary transaction. With New York ranking among the highest in maternal mortality rates, ending this ban may endanger far more women who are desperate for cash. This ban was supported by members on both sides of the aisle and should remain in place.
63rd District: Tim Kennedy (D)
- No Response
New York State Assemblymembers' Responses:
139th District: Stephen Hawley (R)
- No Response
140th District: Robin Schimminger (D)
- Do you believe Commercial Gestational Surrogacy should be legal in the state of New York? No
- Why or why not? Surrogacy should not be a commercial enterprise or activity.
- Have you heard from your constituents concerning the Child-Parent Security Act and/or repealing the ban on Commercial Gestational Surrogacy? Yes. 72 against and 1 for.
- How do you plan to vote on the Child-Parent Security Act? No
- Do you agree with Governor Cuomo's decision to include the bill in his budget proposal? No
- After 12 years since the repeal was first proposed – do you feel confident the Child-Parent Security Act will pass/not pass? Remains to be seen.
141st District: Crystal Peoples-Stokes (D) - A1071 Bill Sponsor
- Do you believe Commercial Gestational Surrogacy should be legal in the state of New York? Yes. I have been a multi-sponsor of the Child-Parent Security Act since 2015.
- Why or why not? I support this legislation because I think it is important to establish clear guidelines and legal parameters and protections for all parties, especially children when New Yorkers pursue surrogacy.
- Have you heard from your constituents concerning the Child-Parent Security Act and/or repealing the ban on commercial gestational surrogacy? I have heard from a relatively small number of constituents on this legislation. Both those that support it and those that have concerns. I always appreciate hearing from all sides on an issue.
- How do you plan to vote on the Child-Parent Security Act? As a multi-sponsor of this legislation, I would vote in favor of the Child-Parent Security Act should it come up for a vote in the Assembly.
- Do you agree with Governor Cuomo's decision to include the bill in his budget proposal? The Governor is charged with presenting an Executive State Budget to the Legislature. The Legislature reviews the Executive Budget, recommends changes, and engages in negotiations to enact a final Budget. It is in the Governor's discretion to present a Budget as he or she deems appropriate, including recommending policy measures that do not have a State fiscal impact.
- After 12 years since the repeal was first proposed – do you feel confident the Child-Parent Security Act will pass/not pass? In these closing weeks of the 2019 Legislative session, the New York State Assembly and the majority conference is actively considering and discussing many legislative initiatives on a wide range of topics, including the Child-Parent Security Act.
142nd District: Pat Burke (D)
- No Response
143rd District: Monica Wallace (D)
Thank you for reaching out to me about this very important policy issue. I have some serious reservations about this bill and would be happy to provide more context via an in-depth discussion. I have been digging into this issue and believe it merits a deeper conversation with an opportunity for follow up questions by a reporter rather than a response via email.
144th District: Mike Norris (R)
- No Response
145th District: Angelo Morinello (R)
- Do you believe Commercial Gestational Surrogacy should be legal in the state of New York? No opposition to the parentage portion of the bill, which eliminates confusion and acrimony after the child is born. It offers protections for parents who use surrogacy. Opposed to paid surrogacy.
- Why or why not? There is fear about making a business out of women bearing children for other people. Uncomfortable with repealing the ban on paid gestational surrogacy now that we're becoming more aware of sex trafficking and how women have been utilized in other countries.
- Have you heard from your constituents concerning the Child-Parent Security Act and/or repealing the ban on Commercial Gestational Surrogacy? Have had no comments/papers pro or con.
- How do you plan to vote on the Child-Parent Security Act? Still looking it over (A1071) -- so cannot comment.
- Do you agree with Governor Cuomo's decision to include the bill in his budget proposal? Do not believe it should have been in the budget.
- After 12 years since the repeal was first proposed – do you feel confident the Child-Parent Security Act will pass/not pass? Has not come before any of the committees I sit on.
146th District: Karen McMahon (D)
- No Response
147th District: David DiPietro (R)
- No Response
148th District: Joe Giglio (R)
Spokesperson: The bill has been referred to the codes committee. Was not on the agenda for the most recent codes committee meeting.
(Assemblyman Giglio's) policy is not to comment until the bill is in its final form and ready to be voted on.
149th District: Sean Ryan (D)
- No Response
150th District: Andy Goodell (R)
- No Response
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