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.
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