The proposed Child-Parent Security Act, currently under consideration by the New York State Legislature and which Governor Cuomo supports, should be passed.
An increasing number of U.S. states have statutes or case law which in some fashion permit commercial gestational surrogacy. As it stands now, only Michigan and New York have statutes which expressly consider the practice to be criminal. The New York statute, enacted in 1992, indicates that engaging in commercial surrogacy is unlawful and leads to fines and potential felony prosecution. This New York criminalization of surrogacy occurred as a direct result of the infamous 1988 Baby M case in New Jersey (109 N.J. 396 (1988)). “Baby M” was a custody dispute between the birth mother and intended parents. In that case, the baby was the genetic child of the surrogate (this is called a “traditional” surrogacy, rarely done nowadays). A woman cannot relinquish parental rights to her genetic child before birth, so the Baby M contract itself was invalidated. However, the resonance of this case has unfairly hindered the practice of gestational surrogacy, which involves the surrogate carrying an embryo created from the egg of the intended mother or a third-party egg donor (no genetic relation to the surrogate). It is well past the time for New York to join the likes of Illinois, New Hampshire, Maine, New Jersey, Washington and others in permitting—with sensible regulation and standards—commercial gestational surrogacy.
We have in New York arguably the most talented and sophisticated reproductive endocrinologists and IVF clinics anywhere. Yet for the last several decades these physicians have been unable to serve a large cross-section of patients (cancer survivors, gay men, women who have suffered repeated miscarriages or endured hysterectomies, women taking necessary medication inconsistent with safe pregnancy) who are legitimately unable to carry a baby, yet long for a genetic child. Prospective parents in New York have not been shut out, however—they instead have worked at clinics in more accommodating states and with carriers who reside in favorable venues. Babies are born in states other than New York, with legal orders of parentage and birth certificates, then brought back home with their New York parents. This entire circuitous mechanism has been rendered necessary because of New York’s continued prohibition on surrogacy within its borders.
Critics warn that commercial surrogacy will result in an underclass of breeders, that it is exploitative of poor women, that it is only for celebrities or multi-millionaires. As a lawyer in this field for the last 20 years, I can confidently say that these charges are wholly inaccurate. 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 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.
Surrogacy has its place on the spectrum of reproductive freedom—a cause championed by Governor Cuomo. New York legislators should see the value in providing their own residents with the same reproductive rights and life-affirming opportunities found in other states. Going elsewhere for medical care and finding carriers in states other than one’s own should be a choice, not a requirement, for anyone contemplating having a baby through surrogacy.
Sanford M. Benardo is an assisted reproduction lawyer in New York and co-founder of the Northeast Assisted Fertility Group.