18 Jun 2019 Left Blocks Bill to Overturn NY Surrogacy Ban

Even as it approaches the finish line, legislation to finally end New York state’s ban on gestational surrogacy is facing vocal opposition from an unexpected source: the feminist left.

We began writing about growing expectations that the state of New York was progressing toward ending its ban on gestational surrogacy in 2013, when we first reported on the Child-Parent Security Act, introduced by Assemblywoman Amy Paulin (D-88th) in May 2012.

New York, along with a number of other states, instituted its ban on surrogacy in the wake of the 1987 so-called “Baby M” case, in which surrogate Mary Beth Whitehead agreed to carry a baby for an infertile married couple, then refused to give the baby up, even though the intended father was the biological dad.

In that case, Whitehead’s egg was used to conceive along with sperm from the intended father. Today, as assisted reproductive technology has advanced and best practices have evolved, fertility physicians no longer recommend “traditional” or “genetic surrogacy” such as in the Baby M case. Genetic surrogacy, in which the surrogate is genetically related to the baby, would remain illegal in New York, even if the new legislation is enacted.

As explained in a recent New York Times update on efforts to end New York’s surrogacy ban:

Under New York law, paid surrogacy is punishable by a fine. So-called altruistic, or unpaid, surrogacy arrangements are not viewed as criminal, but such agreements are not legally binding or enforceable [our emphasis].

The fact that surrogacy agreements are unenforceable in the state means that, even for a woman who agreed to serve as a surrogate with no remuneration—for example, a family member—there would be no enforceable agreement to protect the rights of either her, the surrogate, or the intended parents. No agreement as to conditions under which the pregnancy might be terminated, embryo reduction, pre-natal care and surrogate health, no waiver of surrogate parental rights.

The effect was to end all forms of surrogacy in New York. The ban was hailed by a coalition of conservative and religious voices, a constituency that has, since 1988, consistently lobbied in support of the ban, as we wrote:

New York Governor Mario Cuomo established his state’s Task Force, which includes attorneys, medical professionals, religious leaders and public officials, in 1984. During the Baby M backlash of 1987, Cuomo assigned the Task Force to examine the issues surrounding surrogacy. In 1988 it issued its recommendation to outlaw compensated surrogacy, stating “society can conclude that the potential or likely risks of a practice outweigh the benefits conferred without awaiting broad-scale social experimentation.”

But by 2017, advocates for surrogacy and reproductive freedom in New York were seeing a sea-change in attitudes and weakening opposition to surrogacy. As we wrote early in 2018:

In its December report, the Task Force points out that “the impact of surrogacy is no longer speculative,” and its work is informed by a growing body of research. In 1988, the Task Force concluded that surrogacy was likely to lead to children being treated as commodities; today research has shown that children are not harmed by surrogacy, nor are a surrogate’s biologically related children harmed by having their mother serve as a surrogate. “Research has revealed that children born through surrogacy and other ART practices are extremely desired children and are being raised by highly committed and loving parents.”

On February 27, 2019, the New York State Assembly Judiciary Committee approved The Child Parent Security Act and sent it to the full Assembly—the first time the bill had made it this far in the legislative process

As we wrote then, earlier that month New York Governor Andrew Cuomo signaled his support for ending the ban, announcing his intention to include the act in his executive budget plan. With an end to the ban included in the state budget bill, and Democrats controlling both houses of the state legislature, surrogacy advocates were heartened, convinced the bill was, finally, entering the home stretch for passage.

Enter Gloria Steinem. An icon of the feminist left, Steinem is renowned as a leader of the feminist revolution that swept America in the 1970s and 80s, a champion for women’s right to choose, to have agency over their own bodies, and to have successful and fulfilling careers outside the home. 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.

Unfortunately, Steinem’s letter to legislators hails back to a 1998 Task Force report, when the body unanimously deemed “commercial surrogate parenting” “harmful to the women whose bodies are used and to the children they bear” and cited concerns about exploitation of poor or financially disadvantaged women. In doing so Steinem failed to acknowledge the Task Force’s 2017 report, which reverses that recommendation, and the fact that current industry best practice is to screen surrogates intensively, not only for health and mental health conditions but for financial stability. Women living in poverty or whose families are experiencing financial distress are disqualified.

In fact, surrogacy bans like New York’s discriminate against women who want to serve as surrogates. In response to Steinem’s claims that surrogacy “undermines women’s control over their bodies” and “jeopardizes women’s reproductive rights,” the leadership of RESOLVE, The National Infertility Association, writes: “The choice to HAVE a child must be treated with the same respect we give to women as the choice NOT to have a child.”

In fact, legalizing surrogacy in New York may reduce the number of women who opt to travel abroad for surrogacy services. Since 1998, the surrogacy ban has pushed tens of thousands of New York intended parents to pursue surrogacy overseas, where costs may be lower, but quality of care and regulatory oversight may be lacking. Intended parents pursuing surrogacy abroad may inadvertently support surrogacy-for-sale and human trafficking. In contrast, legal surrogacy in the United States, subject to U.S. laws and standards of care, protects all parties: donors, surrogates, intended parents and children.

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.

Other progressive female lawmakers have joined opposition to lifting the surrogacy ban. Assemblywoman Deborah Glick, who took office in 1991—the first openly gay legislator in state history—cited the traditionally high costs of IVF and surrogacy. In a statement to the New York Times, Glick said, “This is clearly is a problem for the extraordinarily well-heeled.”

What Glick’s statement fails to acknowledge is that with constantly improving technology, a growing number of providers and initial success in persuading some insurers to cover ART procedures, prices are beginning to drop. In addition, new programs have sprung up that aim to match “excess” cryopreserved, or frozen, embryos, typically left over from the IVF process, with intended parents who do not have the ability to pay for fertility treatment.

As Steinem et al join conservative “strange bedfellows” in opposing the bill, the clock is winding down on the New York state legislative session. The bill will come to a vote before the full legislature this week, and Governor Cuomo has committed to signing it into law.

Of course, we must remain vigilant to ensure we continue to safeguard surrogate rights and to guard against exploitation. Long overdue, the reversal of New York’s ban would go a long way toward making surrogacy a viable option in the Empire State.