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Portia Zwicker, 42, was not quite showing as she sat on the couch in her split-level Colonial home in upstate New York. Surrounded by toys, her 6-year-old daughter draws pictures of cats on an easel in orange marker on the other side of the room. Sleeping comfortably had become more challenging lately, so Portia was in the market for a good pregnancy pillow. This is the third time Portia is pregnant, but like the second, she’s not preparing to bring home a baby.
Portia is a gestational carrier, otherwise known as a surrogate. She’s amused when her Instagram advertises her products geared toward expectant parents like cribs and Diaper Genies that, to her relief, she won’t have to purchase. “The algorithm doesn’t get into surrogacy,” she said. Strollers and swaddles will be the responsibilities of her intended fathers, or IFs, a gay couple who also live in New York. For her services, she will be paid $40,000.
Paid gestational surrogacy is not a new phenomenon; more than 18,000 babies were born in the United States with the assistance of gestational carriers between 1999 and 2013, per the CDC. Celebrities like Kim Kardashian and Kanye West, Khloé Kardashian and Tristan Thompson, Grimes and Elon Musk, and Gabrielle Union and Dwayne Wade have all shared that they’ve used surrogates to grow their families. Still, the surrogacy industry in the United States remains unregulated at the federal level, and only half the states have laws that determine how surrogacy should be practiced, if at all.
In 1992, paid surrogacy was banned outright and criminalized in New York State following the “Baby M” case, in which a surrogate refused to surrender the baby she carried, who was created with her own egg, after birth. But prohibition didn’t mean the practice of surrogacy disappeared altogether. Instead, these arrangements happened on the fringes, creating a legal limbo in which little to no recourse would be available to either party if a dispute — or, worse, a medical crisis — erupted. Surrogates had no legal protections against intended parents, or IPs, who may be exploiting them. And the underground nature of the arrangements made IPs vulnerable as well: After all, a surrogate was listed as the mother on a newborn’s birth certificate.
Now, that’s all starting to change. In 2021, New York’s Child-Parent Security Act went into effect, the most robust surrogacy law of its kind in the United States. The law legalized paid surrogacy in New York and also created a number of provisions meant to protect gestational carriers and IPs alike. A Surrogates’ Bill of Rights endows surrogates with a host of protections, including the right to choose their own doctors, consent to all medical procedures, and the right to health and life insurance all paid by the IPs. And the CPSA requires that New York’s Department of Health monitor and license surrogacy agencies — which act as middlemen screening candidates, matching IPs with surrogates, and facilitating compensation — something no other state in the U.S. does. It also allows for nonbiological parents to be listed on a baby’s birth certificate in the hospital.
Surrogacy can be polarizing: To the left, it is fraught with feminist critiques about commodifying a woman’s body; to the right, it incites panic over queer families and reproductive freedom. In 2019 and 2020, when the CPSA was being debated in Albany, Portia attended several lobbying days where she described her first experience with surrogacy, particularly whether or not she felt exploited or coerced. “I didn’t feel those things at all,” Portia said. “I wouldn’t have been there if I didn’t think it was a fine thing to do.”
On the other side of the debate was Gloria Steinem, who wrote in an open letter to former governor Cuomo, “The danger here is not the use of altruistic surrogacy” — or unpaid surrogacy — “to create a loving family, which is legal in New York now, but the state legalizing the commercial and profit-driven reproductive surrogacy industry.” She and others believed that women would be even more vulnerable to exploitation, trafficking, and further subordinated as second-class citizens in the United States for the sake of making a sale.
The law’s passing didn’t quiet critics. In the days following the overturning of Roe v. Wade, photos of herself with her IFs went viral on TikTok. Portia, who wore a long red dress, cradled her bump, her IFs in the foreground. Were the three a throuple? Was she placing her baby for adoption? “This is some Handmaid stuff right here,” tweeted conservative writer Bethany S. Mandel, amassing more than 12,000 likes. Portia turned off the comments on her TikTok when she noticed anti-gay ones trickle in. “And it’s all because I wore a red dress.” Portia said. “Like, give me a break.” As for the dress? She hasn’t worn it since.
“I went into this completely voluntarily and willingly with no coercion and with legal rights that make New York State the best state in which to be a surrogate,” Portia said. “What’s more powerful to a woman than the choice to do what she wants with her uterus?”
When one decides to become a surrogate, her entire being comes under scrutiny. Portia willingly handed over everything from her medical history to her driving record when she applied to be a surrogate with her agency, the New York Surrogacy Center. She was fingerprinted and drug tested. Based on recommendations by the American Society for Reproductive Medicine and the American College of Obstetricians and Gynecologists, agencies conduct interviews with potential surrogates looking for red flags, like evidence of emotional or financial coercion or addiction; fertility clinics have the final say in whether or not a candidate will receive medical clearance. The CPSA requires that a surrogate in New York state be at least 21 and a citizen or permanent resident of the United States, and she cannot use her own egg for the pregnancy.
Portia is perhaps the first surrogate to deliver a baby during and after prohibition. Technically, she never broke the law: She was an uncompensated surrogate for a distant cousin in 2018, before the CPSA was passed. Portia received some financial assistance and reimbursement for out-of-pocket expenses — like the costs of prenatal vitamins and maternity clothes — but no payment for her time carrying and delivering the baby. The baby was born after an emergency Cesarean section, and Portia was listed as a parent on the birth certificate. Only after a court proceeding was her name removed and her cousin adopted the baby. Aside from the counsel of a lawyer and encouragement from a surrogacy Facebook group, Portia navigated the process mostly on her own.
This time around, Portia was matched with her IFs in June 2021 through her agency, where she now works part time as an outreach coordinator. Similar to adoption agencies, surrogacy agencies often create profiles for their surrogates and IPs for each other to review, describing their backgrounds, interests, goals, and deal breakers, and set up a “match meeting” should both parties be interested. Topics addressed can include everything from “favorite foods” and hobbies to practical concerns: whether a surrogate would carry a baby for a single person or a gay couple; the level of involvement surrogates and IPs want from each other; a surrogate’s willingness to carry twins or pump and ship breast milk after the birth. (Portia liked that one of her IPs was a doctor, “which was important to me because of vaccines and COVID precautions,” and she had been hoping to match with a gay couple.) Under the CPSA, surrogates have the right to make all decisions regarding their bodies, including whether or not to terminate a pregnancy, so profiles also may include questions like “If there is a serious medical problem with the fetus you are carrying, and the intended parents want to consider a termination, would you allow them to make that decision?”
New York surrogates are now entitled to independent legal counsel of their choice, paid for by the IPs. Portia’s surrogacy agreement was drafted and signed in about three weeks after some back-and-forth between the lawyers. She requested specific provisions be made, for example, to cover lost wages over the recommended eight-week recovery period from her scheduled C-section. She also requested child care coverage during surrogacy-related appointments.
All told, IPs pay anywhere from $100,000 to $200,000. Agency fees can range from $20,000 to $60,000, and most surrogates who work with an agency are compensated between $35,000 to $75,000. And the required health insurance and life insurance coverage must be worth at least $750,000 (or the most a surrogate might be eligible for, should it be less than that) for 12 months post-birth. Some IPs pay out of pocket, while others take out loans or ask for donations on sites like GoFundMe.
All expenses are paid through an escrow account that agencies and IPs set up, which contains not only the surrogate’s compensation but also money for medical, legal, and other miscellaneous expenses. Should a surrogate receive a bill, she sends it to her agency, which pays it from the escrow.
“There’s no discussion, it just happens,” Portia said.
The day before her embryo transfer in November 2021, Portia took a train across the state, wearing a rainbow mask, to the clinic where the procedure would take place. (“You know,” her husband Mike told me, “we’re basically doing science in the process of creating a life for someone else because they can’t.”) When she arrived, she texted the IFs, asking what car they had arrived in. They responded they were in a silver two-door. Portia thought right away, I bet it’s some fancy car and they just don’t want to say it. When she left the platform, she found a Mercedes coupe waiting for her. She teased them about it when she got in.
“We have a good relationship where I can poke fun at them,” she said. Despite Portia’s openness, discussing the monetary aspect of surrogacy can still feel a little awkward. A common refrain in the surrogacy world: Surrogates are paid for their pain and suffering. Personally, she doesn’t think of it as a job.
“I mean, when you start using that word, then you’re getting into ethical issues as well,” she says of calling surrogacy a job. More of a part-time volunteer gig with a stipend, then? “I have no obligations except to live a healthy lifestyle and follow doctors’ orders,” she said. “I wasn’t getting reviewed. I don’t depend on this.” So far, she has used about half of her compensation to remodel the back porch of their home and has no further plans for the rest outside of savings.
Downstate, at an Upper East Side diner, 38-year-old Christina Bramante was 28 weeks along. She had completed a glucose tolerance test, which gauges for gestational diabetes, that February morning and answered my questions between enthusiastic bites of her veggie burger and matzo-ball soup. Christina wanted to become a surrogate for years before she took the leap. A career labor and delivery nurse and doula originally from Illinois, her passion for pregnancy began after she witnessed the birth of her sister at 12 years old.
“It’s the first birth I saw out of all the thousands I’ve seen now,” she said.
Before this pregnancy, Christina already had four children of her own with her husband. In her work, she regularly met families struggling with infertility or couples who could not conceive on their own. “It reinforced my feelings of wanting to help somebody,” she said.
She began pursuing surrogacy in late 2020 with Alcea Surrogacy, an agency based in Texas with satellite offices in New York City, where she is now a clinical-nurse coordinator. But she hit a snag when the law went into effect: All operations had to come to a standstill until her agency was reviewed and licensed by the Department of Health. For the next three months, Christina had to wait.
“It was a bummer,” she said. “We moved on with life in the meantime and put surrogacy on the back burner until everything was ready.” As soon as they got the call that Alcea was licensed in June 2021, Christina said, “we were ready to rock and roll again.”
Christina and her husband are using some of her compensation on a kitchen renovation. Though demographic data about surrogates is limited, according to a 2018 study for the Journal of Women’s Health, out of a sample of 204 gestational carriers in the United States, 28 percent had a household income of $100,000 or more. About three quarters of surrogates had a household income of at least $50,000. In her study of the country’s largest online forum for surrogates, UCLA sociology professor Zsuzsa Berend wrote that outsiders often see surrogacy as a matter of love versus money, as if the two are incompatible: “Surrogates, however, think of the monetary compensation in the context of, and not in opposition to, a personal bond.”
“It’s not some huge astronomical number. It’s not, Wow, you’re being paid to have this baby,” Christina told me. “It’s not like that at all. It’s just fair.”
When Christina thought she might be in labor in April, she headed to the hospital where her water broke, and the baby was born soon after. The birth went as planned, and we caught up on the phone as she was waiting to be released. “I’m on cloud nine,” she said. “The whole thing was beautiful.”
This pregnancy felt different from those of her own children. “I love this baby in a very different way. In my mind and in my body, I know that I’m doing this for a purpose,” she said. She said the new state protocols worked flawlessly: The pre-birth order — which established that Christina was the surrogate, not the parent — had been filed with the court, so she was not listed on the newborn’s birth certificate.
Since the birth, Christina has been pumping and shipping breast milk to the baby she carried. As stipulated in her contract, she is compensated for the service each week. Surrogates are on average paid around $250, or $1 an ounce, per week, though the fee varies per arrangement. Using thermal coolers she bought from Amazon, Christina tightly packs as many bags of milk as she can to send overnight. She is reimbursed for the cost of mailing as well as the costs of various pumping paraphernalia, and she has also been able to donate additional breast milk to families in need. As she watches the baby grow in pictures she receives, she reflects on how her pumping has played a part.
“Everything’s been going great,” Christina said. “I mean, pumping isn’t easy by any means. But it’s for a good cause and a labor of love for sure,” she said.
Would she be a surrogate again?
“If everything continues to go perfectly,” she said, “I would absolutely do it again.”
A real-estate agent and executive administrator living in upstate New York, Britney Herringshaw, 33, was born and raised in England. She moved to Florida with her parents and four siblings when she was 14 years old. In 2018, she moved to New York with her three children and husband, Donnie. She had long wanted to become a gestational carrier to help someone else complete their family. “I thought that feeling would maybe go away after some time,” she told me, “but it didn’t.” In addition to the feelings of altruism, she plans to put the money she’ll earn into college savings for her children.
With the passage of the CPSA, New York IPs can work with local surrogates, making for less burdensome travel and ensuing expenses. Closer distances can also create more intimate relationships. When Britney was matched with her IPs in September 2021, the bond formed quickly; she half jokingly calls her intended mother, or IM, 39-year-old Michelle Tunison, her “significant other.”
Michelle struggled with infertility for around ten years before pursuing surrogacy. Her first loss, of quadruplets, was in 2013. “That was the first instance of this huge grief that we experienced,” she said. She and her husband, Drew, continued with fertility treatments, and their son was born in 2015.
“I kept trying,” she said. “And at first I didn’t want to give up trying with my body. But then I realized that what I didn’t want to give up was the chance of having a baby.” With each pregnancy loss, she became more anxious. She wondered if it was worth it to see if there was anything left they hadn’t tried, and the only options left were adoption or surrogacy. She saw Britney’s profile and it was “love at first sight.”
Britney began taking hormone shots to prepare her body for the embryo transfer. The odds of a transfer becoming a viable pregnancy are similar to a coin flip. In the ten days between her first transfer in January and the pregnancy test, she felt that her body was giving her positive signs, and she was optimistic and happy. But the test came back negative. Britney had to tell Michelle the news herself. After all of the joyful bonding (and hormone medication), the disappointment hit hard.
“I was gutted,” she said. “It was so unexpected because everything was so rainbows and butterflies up to that point. I was confused on how to process it.”
The Surrogates’ Bill of Rights establishes that surrogates have a right to counseling at any point paid for by the IPs. Britney decided to exercise it. She wanted to understand how to balance Michelle’s experiences and expectations with her own as the process moved forward. Plus, surrogacy can be isolating at times. Few people have experienced it themselves, and it’s easy to feel misunderstood. While Britney’s mother and siblings supported her choice, she felt some confusion and concern from older relatives who assumed it would be difficult for her to “give up” the baby. Britney also feels she stands out in the largely white world of surrogacy; she seldom sees other biracial surrogates in Facebook groups or medical offices. And despite her dedication to helping her IPs, Britney struggled with certain lifestyle changes, like having to stray from her regular diet and workout routine.
When she pursued surrogacy, Britney had not anticipated that she’d need to set emotional boundaries with her IPs. She didn’t even know what to ask for. “And the therapist was really great because she said, ‘You need to ask yourself what you’re expecting out of this,’” she said. Therapy has helped Britney ask for what she needs from Michelle and Drew, who attend as many medical appointments and ultrasounds as possible. And since Michelle herself went through IVF in the past, she has been able to provide Britney with more than moral support: At one point, she realized Britney should have still been taking prednisone and called their clinic, which realized it had made an error.
Britney underwent a second embryo transfer — a double — in March. This time, she indulged in an enduring IVF superstition of eating McDonald’s fries post-transfer to help the pregnancy “stick.” Around seven weeks post-transfer, she learned that one of the embryos was no longer viable, but the other showed cardiac activity. The pregnancy stuck.
The morning of the transfer procedure, Portia went to the Starbucks across the street from her hotel and completed her medication regimen as usual. She also had to drink water to expand her bladder, which would push her uterus forward so it’s easier to see during the abdominal ultrasound. She tried to time it right so she would be near — but not quite — bursting by the time she arrived at the clinic. She had special shirts made for the occasion for the IFs and herself. Hers read “I CAN’T KEEP CALM IT’S TRANSFER DAY” on the front and “SURROGATE” on the back.
She was given a Valium to prepare for the transfer. Portia could see on the ultrasound the “pocket of air” that contained the embryo as it was transferred. Once the procedure was complete — she did not feel a thing, nor did she in previous transfers — Portia was able to use the restroom.
“And so then we were all done. We actually ended up taking a lot of pictures. The clinic was so excited for us. This was their first New York–based surrogacy” under the new law, she said. “It was totally different from last time, where I was the only one who went and nobody cared!” Five days post-transfer, in November 2021, Portia hopped on FaceTime with her IFs and revealed the results of her pregnancy test: positive. The next milestone would be to hear the cardiac activity at the six-week ultrasound. Portia’s first payment would be released then and each month thereafter for the remainder of the pregnancy.
Embarking on her second surrogacy, Portia felt confident: She knew what to expect, and — unlike her first time around — she said the protections outlined in the Surrogates’ Bill of Rights put her at ease. Still, she had nerves: “The part that I’m a little nervous about is being older and doing it again. The aches and pains that come with the physical experience.”
The risks of any pregnancy can be daunting. “It’s major surgery,” she told me in the weeks before her scheduled C-section. “That’s always nerve-racking. And you hear about things going wrong. It’s unusual, but things can go wrong.”
Portia headed to the hospital on July 25. She had to sign paperwork acknowledging the side effects of the anesthesia, like nausea and difficulty breathing. The next afternoon, a baby girl was born. On the phone, Portia seemed almost surprised as she described how relaxed she felt in the operating room. Her husband Mike was with her, and the IFs waited in another room. “I got a little teary-eyed when I heard her cry,” she said, reassured that the newborn was healthy.
But when the surgeon asked if she wanted to see the baby, Portia declined. She wanted the child’s fathers to see their daughter first.
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