The proposed Child-Parent Security Act (CPSA or the Bill) is legislation that would modernize New York’s domestic relations scheme by repealing the prohibition and criminalization of compensated gestational surrogacy arrangements. The Bill would also streamline the establishment of legal parentage for donor-conceived children and regulate the disposition of frozen embryos. This article refutes some of the recently voiced opposition to the surrogacy component of the Bill and highlights the many benefits it would introduce.
In staunchly opposing the CPSA based upon little more than fundamentalist mores, many critics of the Bill resort to scare tactics and biased caricatures from outdated literature, anomalous cases, and legal myths. In actuality, legalizing and closely regulating compensated surrogacy arrangements would bring New York in line with the majority of other states that permit it, would reconcile New York’s statutory scheme with increasing judicial recognition of alternative family structures—including those formed with the help of assisted reproductive technologies, would extend reproductive freedom to New Yorkers, and would reduce the economic risks and legal uncertainties that result from New Yorkers participating in unregulated altruistic surrogacy arrangements within the state and/or compensated surrogacy arrangements outside the state.
To fully respond to criticisms of the Bill, it is necessary to define the relevant terms and components of assisted reproductive technology (ART) and describe the surrogacy process itself. Intended parents (IPs) pursue surrogacy primarily because they suffer from infertility; and/or they have a medical condition that makes pregnancy an unreasonable health risk; and/or they are biologically incapable of carrying a pregnancy (i.e., gay male IPs or women who have lost their uterus after undergoing treatment for cancer or other diseases). IPs pursuing surrogacy can either undergo in vitro fertilization (IVF) (the process by which a woman’s eggs are surgically retrieved and then fertilized with a man’s sperm in a laboratory setting) to create an embryo with their own biological material or use donor egg/sperm. In gestational surrogacy, which is the only form of surrogacy that the CPSA would permit, an embryo resulting from IVF and/or donated genetic material is transferred into the uterus of a third-party woman who did not contribute the egg, and she gestates or carries the pregnancy to term. In other words, a person acting as a gestational surrogate has no biological connection to the child (which is distinct from “traditional surrogacy” arrangements, which are not permitted by the Bill, in which the woman who carries the pregnancy also contributes the egg and thus has a biological connection to the resulting child.) IPs and persons acting as gestational surrogates most commonly find each other through matching programs which carefully screen candidates for both suitability and compatibility.
The legislation banning surrogacy agreements in New York is Article Eight of the state’s Domestic Relations Law, which was enacted in 1992. Article Eight declares all surrogacy arrangements “contrary to the public policy of [New York and] void and unenforceable” and makes it per se illegal to compensate a surrogate beyond certain limited permissible payments (i.e., payments associated with adoption and permitted by the social services law, and payments for reasonable and actual medical fees and hospital expenses for artificial insemination or in vitro fertilization services incurred in connection with the birth of the child). Article Eight also sets forth applicable penalties for anyone who participates in a compensated surrogacy arrangement. New York is one of only two states that criminalizes compensated surrogacy (the other is Michigan). The CPSA proposes to amend Article Eight to exclude gestational surrogacy cases from the prohibition and replace it with a new comprehensive regulation that would permit compensated gestational carrier agreements provided they meet the rigorous standards and best practices embodied in the Bill.
Inapposite Analogies to the Infamous ‘Baby M’ Case: New York’s surrogacy ban followed the controversial New Jersey custody battle, In re Baby M, 537 A.2d 1227 (1988). In that case, an intended father entered into a surrogacy agreement with a woman whom he and his wife found through a newspaper ad. According to the agreement, the surrogate would be inseminated with the intended father’s sperm, bring the pregnancy to term and would then relinquish her parental rights in favor of the intended mother. Thus, the surrogate in that case was a “traditional surrogate” in that she had both a biological and a gestational connection with the resulting baby. After birth, the IPs allowed the surrogate to visit with the child, at which point she and her husband ran off with the infant. The intended parents sued to be recognized as the child’s legal parents. The New Jersey court ruled that the surrogacy agreement was invalid as against public policy, recognized the surrogate as the child’s legal mother, and ordered the Family Court to determine who should have legal custody using a “best interests of the child” analysis. Ultimately the intended father was awarded custody, with the surrogate having visitation rights.
Those who condemn the CPSA by reference to Baby M disingenuously conflate “traditional surrogacy” arrangements, which are specifically excluded from the Bill’s purview, with the gestational surrogacy arrangements contemplated by the Bill. They also omit from their analysis the very salient fact that the state of New Jersey has since legalized the practice of gestational surrogacy. See New Jersey Gestational Carrier Agreement Act, N.J. Stat. 9:17-60, et seq. (signed by the Governor on May 30, 2018).
Unsupported Concerns About a Surrogate’s Autonomy: Some uninformed critics of the Bill argue that compensated surrogacy agreements deprive persons acting as surrogates of their Constitutional right to terminate a pregnancy, and financially disincentivize surrogates from withdrawing from the agreement before pregnancy is achieved even if it is medically unsound. These allegations are specifically and unambiguously belied by a plain reading of the Bill’s carefully construed requirements.
Under the proposed CPSA: a gestational agreement “may not limit the right” of the surrogate to terminate the pregnancy or reduce the number of fetuses or embryos she is carrying; there “shall be no specific performance remedy available for a breach by the [surrogate] of a gestational agreement term that requires the gestational carrier to be impregnated or to terminate the pregnancy or to reduce the number of fetuses or embryos [she] is carrying”; and the agreement must contain a statement that the surrogate can choose her own doctor. The Bill also militates against concerns about surrogates feeling compelled to go through with the embryo transfer by requiring every agreement to state that it can be terminated before a pregnancy is achieved without penalty.
Claims That Compensated Surrogacy Is ‘Baby Selling’ and Commoditizes Women: Critics also demonize the proposed CPSA for allegedly condoning “breeding for adoption” or “baby selling.” It is argued that compensated surrogacy arrangements are necessarily exploitative of lower-class women who become surrogates because they are “desperate and destitute” and therefore deprived of their reproductive freedom. Aside from the incongruous nature of this position (certainly a wholesale prohibition against a woman’s right to act as a surrogate and to be compensated for it is a worrisome deprivation of liberty), it ignores extensive social science research on the issue which finds that there are no deleterious effects on women who have been surrogates or their families. See, e.g., New York Task Force on Life and the Law, Revisiting Surrogate Parenting: Analysis and Recommendation for the Public Policy on Gestational Surrogacy (2017) (the Task Force). Instead, the research finds that: women decide to act as surrogates out of the desire to help infertile couples and report being fulfilled by the experience; surrogates deny any coercion into surrogacy arrangements because of financial desperation; and surrogates do not report feeling the victim of market forces. (The research likewise counters concerns that children born from surrogacy arrangements are negatively impacted. According to the Task Force, “there are no formal, peer-reviewed research publications that conclude that children born through surrogacy have adverse psychological harms.”) In a Feb. 20, 2019 joint letter to Governor Cuomo written by a coalition of 14 women who had been surrogates, they explain:
There are few things as rewarding as seeing a parent hold a newborn baby for the first time and knowing that you brought that life into the world for them … It’s important that people know that the primary motivation for each of us, and for all the surrogates we’ve come into contact with, is helping a family, not financial reward. … surrogacy today is a partnership—between the surrogate, the intended parent(s), doctors and nurses, and the surrogacy agency. We all get to know one another, see if we’re a good match, and then work together through this process of bringing a baby into the world.
The proposed CPSA models best practices and adopts high standards that have been established to protect both surrogates and IPs, and to ensure that if there is any power imbalance it is mitigated by regulation. For example, it requires that surrogates (and their spouses, if any) have independent legal counsel and major medical insurance coverage in place before embryo transfer, and mandates that the surrogate’s compensation be placed in escrow with an independent escrow agent prior to the occurrence of any medical procedures.
Fallacy That the CPSA Will Invite Custody Battles: Although the only sanctionable conduct under current New York law is compensated surrogacy, the statute nevertheless also declares all surrogacy arrangements void and unenforceable in a court. In fact, it specifically prohibits a court from considering a surrogate’s participation in a surrogacy agreement as adversely limiting her parental rights, status, or obligations in any action or proceeding involving a dispute between her and a genetic father or intended genetic mother. New Yorkers nevertheless participate in compassionate surrogacy arrangements. In practice, this has the unintended consequence of exposing New Yorkers to heightened uncertainty about parentage rights and obligations in the event of a dispute, and to avoidable financial risks. Thus, IPs are at a heightened risk of losing custody to a “birth mother” who changes her mind and wants to keep the child, and women acting as surrogates are at risk of forced parentage and financial obligations to support a child that was never intended to be her legal child.
New York’s current law further increases the risk of custody disputes by forcing IPs to go out-of -state to participate in a surrogacy arrangement. These interstate arrangements are far more complicated and less secure than their intrastate counterparts concerning legal parentage and custodial rights. For example, while interstate surrogacy agreements often contain choice of law provisions designating the law of the state in which the surrogate lives or gives birth, there remains a risk that a court will apply New York law and invalidate the agreement if there is a significant nexus to New York (e.g., the embryo transfer takes place in New York, or the surrogate prematurely delivers the child in New York). Interstate surrogacy arrangements also often mean that IPs have less contact with the surrogate and attend fewer medical appoints, which can make the bond between them more difficult to forge and maintain.
By establishing clearly defined procedures for obtaining judgments of parentage that become effective upon the birth of the child, the CPSA ensures enforcement of the intent of a surrogacy agreement and reduces the risk of a custody dispute.
Misplaced Fear That the CPSA Would Turn New York Into a Site for ‘Reproductive Trafficking’: Some opponents of the Bill contend that by reversing its anti-surrogacy law New York will “be viewed internationally as a new paradise for reproductive tourism—similar to a rogue state like Ukraine—where businesses profit from the sale of women and their babies to well-to-do Americans and other foreigners.” See Letter to Governor Cuomo dated March 11, 2019, from The Center for Bioethics and Culture on behalf of Stop Surrogacy Now campaign. This thinly veiled scare tactic ignores the fact that as of 2018, 48 states and the District of Columbia permit the practice of compensated gestational surrogacy, by statute, case law, or judicial practice. See Gestational Surrogacy Law Across the United States: State-by-State Interactive Map for Commercial Surrogacy, Creative Family Connections. In other words, IPs pursuing surrogacy can be matched with surrogates in virtually every other state in the country; there is no need to flock to New York to access an otherwise unavailable family building option. Moreover, the Bill’s 90-day residency requirement not only enhances the opportunities for interaction between IPs and surrogates, it also serves to dissuade people from coming to New York solely for surrogacy purposes and prevents New York from becoming a surrogacy mill state.
By permitting compensated surrogacy arrangements that meet the Bill’s high standards, the CPSA would finally allow New Yorkers the opportunity to exercise the same reproductive rights and family building opportunities that are endowed to the citizens of 48 other states. No longer would infertile and gay male IPs who are citizens of New York be forced to go out-of-state for the opportunity to raise their own biological children, and no longer would they be subject to the unnecessarily heightened legal uncertainty, excessive financial burdens, and disrupted continuity of care that is the inevitable result of forcing New York IPs to switch to out-of-state medical providers. Moreover, the CPSA would validate the personal autonomy of New York women who are willing to serve as surrogates to carry and deliver a baby to be raised by loving parents.
Alexis L. Cirel is a partner in the matrimonial department at Schwartz Sladkus Reich Greenberg Atlas in Manhattan.