Angelina and Steven Kates, a New York City couple who used a gestational surrogate to give birth to a healthy baby boy, are thrilled to finally be parents. There’s only one problem: According to the state of New York — and the baby’s birth certificate — they aren’t his parents at all.
The Kateses did everything they were supposed to according to New York law regarding surrogacy. The state has some of the strictest laws in place when it comes to the growing practice of using a gestational surrogate. Chief among them? The surrogate must act “altruistically” — that is, they can’t be paid for their services.
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That wasn’t a problem for the Kateses, who asked Angelina’s cousin, Elena Klimova, to help out. Klimova was happy to, and unlike some of the surrogacy horror stories we hear, everything turned out just right. The baby was healthy, Klimova was amenable, and the Kateses got their baby. The only problem is the last legal hurdle the Kateses have to clear before they can be an official family: In New York state, Klimova and her husband, Aleksandr, are considered to be the child’s biological parents.
It’s one of the last states where, even when the surrogate method used is strictly gestational surrogacy — the surrogate has no biological connection to the child — the surrogate and her husband, if she’s married, are considered the parents of the new baby. The state even makes it official; the Klimovas are listed on Baby Boy Kates’ birth certificate.
That’s what the couple is fighting for: legal recognition. The Klimovas certainly have no objection, which Elena Klimova confirmed in an affidavit, saying:
“I am neither genetically nor emotionally the child’s parent. I do not wish to assume any legal or finance responsibility for the child…I have children of my own, who are genetically related to me, and I do not want to be named as a parent of child to whom I have no genetic connection and no interest in parenting.”
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While the Kates’ case is far from unusual — every New York parent that opts to go the surrogacy route has to go to court to terminate their surrogate’s parental rights — it definitely speaks to how woefully behind the times surrogacy laws are. It’s a quagmire to be sure; how do we best go about protecting both the interests of the surrogate and the client?
Because in this instance, there’s more at stake for the surrogate too. If anything were to happen to her before the family makes it through court, her financial estate could be considered just as much the Kates’ son’s inheritance as her own children’s. What’s more is that custody could even pass to her husband and not the baby’s actual parents.
When you put it all down in black and white like that, it’s not hard to see that this is a terribly convoluted process that needs to be streamlined or at least receive an injection of common sense. At the very least, New York could follow the examples of more surrogate-friendly states like California and allow the biological parents to apply for birth certificate amendments before the baby is born.
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Surrogacy can be messy too. That’s clear just from some of the instances in which all parties are not satisfied with the outcome. But one thing surrogacy isn’t is going away. It’s estimated that between 2007 and 2011, the number of couples opting to use a gestational surrogate has increased by 28 percent. Gestational surrogacy is an important pathway to parenthood for LGBTQ couples and couples whose fertility challenges require the use of a different “oven,” so to speak.
Making it difficult to compensate surrogates or for intended parents to have complete parental rights from the moment of birth feels a little like punishing couples like the Kateses for trying to play by the rules. When there’s this much angst during a time that should be celebratory, it might be time to think about rewriting the rules so that they work in everyone’s best interests. The surrogate, her client’s and especially the baby in the middle of it all.
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