19 Mar 2019 Movement to End New York Surrogacy Ban Advances

New York advocates for reproductive freedom report progress in their efforts to end the state’s nearly three-decade ban on commercial surrogacy agreements.

Despite ongoing organized opposition from far-right and anti-choice forces, 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 has made it this far in the legislative process. As we wrote, 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. The bill will be part of the state budget bill, which is up for a vote in April, and with Democrats controlling both state legislative bodies, supporters are optimistic.

As we reported last year, New York’s 1992 ban was a backlash reaction to a heartbreaking and sensational case in which a surrogate breached her agreement to give custody of the baby to the intended parents:

New York was one of several states that instituted bans on paid surrogacy and surrogacy contracts in the early 1990s in the wake of the infamous “Baby M” case, in which a surrogate, in violation of a surrogacy agreement, refused to give custody of the child to the intended parents. In the resulting court and media battle, opponents of assisted reproduction depicted surrogacy as inhumane and exploitative of women and children, akin to “baby selling. Although “altruistic” surrogacy, in which the surrogate receives no payment, remained legal in New York, any contract to formalize the arrangements, including designating parentage, was unenforceable, effectively banning all surrogacy. For this reason, for [nearly] three decades, New Yorkers seeking to have biologically related children were forced to travel to another state for the surrogacy and birth.

In the decades since Baby M, best practices in fertility treatment, parentage laws and regulatory structures have all changed and improved. “Traditional” surrogacy, in which the surrogate is genetically related to the baby, as was the case with Baby M, is rarely practiced today, and in many states the intended parents, rather than the surrogate, are presumed to be the legal parents from the point of conception.

Yet, even as surrogacy and other forms of assisted reproduction have become more effective, popular, accessible and publicly accepted, anti-choice activists have continued to seize on infrequent but tragic cases of malfeasance or irresponsibility and the resulting inflammatory headlines to fuel their opposition.

Case in point: In a recent opinion piece for the New York Law Journal, the authors, attorney Susan L. Bender and psychologist Phyllis Chesler, who has been involved in anti-surrogacy activism for more than 30 years, likened compensated surrogates to modern-day “Handmaids,” a la Margaret Atwood’s dystopian tale. It is one of the most nastily prejudiced pieces of writing I have seen in a long time.

In their editorial, Bender and Chesler claim “commercial,” or compensated, surrogacy is “baby selling, baby buying, reproductive prostitution, and the commodification of women” and “matricidal.”

“This Bill, as written, would turn New York state into a site for reproductive trafficking,” they write.

Only the wealthy pursue parenthood via assisted reproductive technology, the authors conclude, while the poor will be exploited—as if anyone who would agree to become a surrogate must be financially desperate and without options. This toxic hit piece goes on to cast aspersions on gay intended parents, on all individuals who choose assisted reproduction rather than adoption as their path to parenthood, and, incredibly, even on children who are adopted.

The authors accuse gay men both of racism and of “fearing investigation” into their parental suitability, implying that because LGBT people are no longer universally rejected as adoptive parents they now have an obligation to adopt rather than pursue biological parenthood.

In the past, gay individuals and couples were rejected as adoptive parents. This is no longer true. Today, the Spence-Chapin Adoption Agency in New York City offers gay male and female individuals and gay couples the right to adopt newborns or infants no older than eight weeks but who are probably “black and Hispanic.” Why is this option not being exercised?

Genetic narcissism, racism, and a desire not to be investigated are possible answers.

Infertile couples or same-sex couples who desire genetically related kids are selfish, racist or fearful of adopting a “damaged” child, the authors continue:

Some people only want children who share their genes. Many potential parents do not want a child with African features. Another reason for “designer” gene babies: Even newborns may suffer from fetal alcohol syndrome, AIDS, and genetically inherited medical disorders.

After all, “adoption poses challenges,” Bender and Chesler write. “Adopted children often suffer from psychiatric problems more than their non-adopted counterparts.”

As someone who has worked with thousands of intended parents and families created with the help of reproductive technology, and with many devoted surrogates, I can tell you that none of the authors’ biased stereotypes hold up in the real world. No child is more wanted and loved than a child of intended parents, who typically go to great lengths and significant expense to conceive. No child born via assisted reproduction is an “accident.”

New York ART attorney Sanford M. Benardo, in a follow-up to the New York Law Journal piece, eloquently rebutted many of the defamatory stereotypes littering the Bender-Chesler piece:

The cases which don’t make the news but are emblematic of the vast majority of relationships I have been involved with look very different from what the alarmists see as “baby selling.” Carriers [surrogates] are often college educated and have an appreciation for the major significance of this endeavor. They have the support of their spouse or partner. They are nurses, middle school teachers, veterinary technicians and stay-at-home moms. They are used to caring for others. A typical surrogate’s family is solidly middle class—spouse or partner might be in law enforcement or construction or small business. Not wealthy, but far from desperate and destitute. And eager to save for college for their children (all carriers have given birth before) or for a down payment on a house or for some other justifiable need.

Intended parents (this is the terminology used) cannot—at any responsible clinic or program—be motivated by anything other than legitimate medical reasons. Any frivolous effort at “outsourcing” a pregnancy is exposed pretty quickly and rational physicians, mental health professionals and programs will not be in a position to assist. Rather, a common scenario would involve an intended mother on tamoxifen after breast cancer surgery, or an intended mother with a cardiac condition requiring medication which makes pregnancy dangerous, or a gay male couple now able to get married legally and wishing to have children just as any other young married couple might want. The costs are high and insurance coverage is minimal to non-existent, but it is worth it to these families.

In my own fertility law practice, I have found that people, including gay men, opt for assisted reproduction over adoption for many different reasons. Heterosexual couples who want to become parents, assuming they are fertile, have the choice between procreating the old-fashioned way or by adopting, without facing criticism for not choosing adoption. What assisted reproductive technology (ART) has done is to offer that same range of choice to many more people: people suffering from infertility, people facing invasive surgery or treatment, single intended parents, same-sex couples, and more.

ART typically is costly, as is true of most advanced medical technologies. But in the years since I established my firm, International Fertility Law Group, constant advancements and development of best practices have increased effectiveness, improved outcomes and pushed costs down, even as insurers and government health plans in the U.S. and abroad have expanded coverage for ART procedures to more people.

At this writing, advocates for reproductive freedom continue to rally in Albany, urging state lawmakers to allow New Yorkers the range of choices and the same benefits of well-regulated assisted reproductive services as enjoyed by their peers in surrounding states. We wish them well.