02 Jan 2020 Cuomo Vows to Take on New York Surrogacy Ban Again in 2020

In advance of his January 8 state-of-the-state address, Governor Andrew Cuomo has promised to renew his efforts to end New York’s statewide surrogacy ban in 2020 and to provide the strongest protections for surrogates and intended parents anywhere in the U.S.

Cuomo and other progressive legislators tried to end New York’s ban on gestational surrogacy in 2019, only to run into opposition from an unexpected quarter: leftist feminists, notably Gloria Steinem, and even some Democratic lawmakers, joined right-wing conservatives in opposing the bill. As we wrote last June:

Ironically, despite the fact Steinem and her movement influenced many women to postpone childbearing to focus on careers, she now opposes egg donation, IVF and surrogacy, technologies that can give women who did so the opportunity to be later-life parents.

If Cuomo and advocates for reproductive freedom are successful this session, New York would set the “gold standard” for enacting protections for surrogates and intended parents, as we wrote:

The addition of a Surrogate’s Bill of Rights contained in the New York legislation may well make it the “gold standard” for surrogacy laws in the United States. The Surrogate’s Bill of Rights establishes the surrogate’s right to quality health care and insurance coverage covered by intended parents, the right to terminate the pregnancy for any reason, and the right to counseling and life insurance covered by IPs. Additionally, the bill requires the New York Department of Health to issue guidelines mandating full disclosure of health risks associated with pregnancy and egg donation. The law would require that at least one intended parent be a U.S. citizen or permanent resident.

Under current New York law, “commercial” surrogacy—compensating a surrogate for her time and inconvenience—is illegal. Unpaid surrogacy is technically legal, but surrogacy agreements, which establish the rights and obligations of both surrogate and intended parents, are unenforceable under New York law, effectively eliminating the practice and leaving thousands of New York residents to travel to other parts of the U.S. or abroad to undertake surrogacy. New York is one of just three U.S. states that still ban surrogacy, a fact Cuomo pronounced “unacceptable.”

“New York’s surrogacy ban is based in fear not love, and it’s past time we updated our antiquated laws to help LGBTQ couples and people struggling with fertility use commonplace reproductive technology to start families,” Cuomo said.

In addition to ending New York’s surrogacy ban, Cuomo proposed legislation could set a national standard by streamlining the onerous “second-parent adoption” process, which is used to establish the parentage of non-biologically related intended parents of children born via assisted reproduction. Cuomo’s statement spells out the many barriers created by current state law:

The process can take about a year and imposes many burdensome expenses, including lawyer's fees, court fees and fees for the mandatory home visit from a social worker that can cost up to $5,000. Petitioning parents must also provide a letter stating their position and salary, a letter from their primary physician, a letter from the child's pediatrician stating the child is in good health, a list of every residence the petitioning parent has lived in for the past 28 years and relevant financial information, in addition to providing fingerprints for a background check.

Governor Cuomo's legislation would simplify and streamline this process by instead requiring a single visit to court to recognize legal parenthood while the child is in utero.

While we are encouraged by Governor Cuomo’s continuing commitment to reproductive rights in New York state, we are steeling ourselves for what response we will see from our traditional feminist and progressive allies. My hope is that, between last June and now, someone has reminded them that pursuing parenthood via assisted reproduction is an act of courage, of faith, hope and sacrifice. No baby born via assisted reproductive technology is an “accident.” The process is never quick, easy, or cheap, and the outcome is never certain. But the evolution of ART has been one of offering new hope and expanding possibilities where before, because of physical illness, injury, dangerous duty, gender or sexual orientation, there were none. Happy New Year, New York, and here’s wishing that 2020 brings equal reproductive rights and gold-standard protections for families everywhere!