Cuomo proposal would lift New York’s ban on surrogacy contracts

Albany, N.Y., Feb 5, 2019 / 20:00 pm

Just days after expanding legal abortion up to the point of birth, New York Governor Andrew Cuomo is proposing a law that would lift the ban on surrogacy contracts in the state of New York.

If passed, the law would allow New Yorkers to pay a woman to carry to term a child conceived through in-vitro fertilization. It would not allow a surrogate mother to use her own eggs, and therefore be related biologically to the child.

Under current law, surrogacy contracts in the state are punishable by a fine of up to $10,000 or by a felony charge.

Cuomo told the New York Post Feb. 1 that the new law would help to update the "antiquated" surrogacy ban laws which "frankly are discriminatory against all couples struggling with fertility, same sex or otherwise." Surrogacy contracts have been banned in New York since 1992.

Cuomo's proposal, called the Child-Parent Security Act, is included in the governor's executive budget plan for the state and is something his administration has been considering since at least 2015, according to the New York Post.  

When Cuomo first floated the idea, Jennifer Lahl of The Center for Bioethics and Culture Network, slammed surrogacy for treating women "like breeding animals."

"We try to get a mother and a baby to bond," Lahl told the Post in 2015.  "We're against ripping the baby from the mother the moment he leaves the womb. It's not good for the child."

Surrogacy laws vary widely throughout the United States. Besides New York, only three other states explicitly ban all surrogacy contracts - Nebraska, Michigan, and Arizona. Many other states have restrictions on surrogacy agreements, and treat the surrogacy process similarly to adoption, requiring court appearances, home studies, and a window for the birth mother to change her mind after the baby is born.

Surrogate mothers are typically paid between $30,000 and $50,000 for carrying the child to term, depending upon the state and the contract.  

Laws governing surrogacy are complex, because the procedure involves multiple parties - the donor egg, donor sperm, and the surrogate womb - in addition to the intending surrogate parents. Therefore, many states leave it up to the courts to govern surrogacy disputes.

Typically, courts favor "gestational surrogacy" - in which the child is created through a donor egg and donor sperm - over "traditional surrogacy", in which the child is created with a donor sperm and the surrogate's egg, making her the child's biological mother.

Critics of surrogacy, both nationally and internationally, have slammed the practice for taking advantage of poor women and for the detrimental psychological and emotional impact that surrogacy can have on the women and children involved.

Many countries in Europe, including France, Germany, Spain, Italy, and Sweden have banned surrogacy. In the United Kingdom, surrogacy agreements are unenforceable because the woman who gives birth to the child is legally recognized as that child's mother.

The United Nations and the European Parliament condemned the practice in 2015, while a 2018 documentary called "Big Fertility" detailed the coercion and manipulation of women and the big money behind the surrogacy industry.

Still, there has been a recent push to expand the practice of surrogacy in the United States. In 2018, the legal group Uniform Law Commission (ULC) proposed an updated Uniform Parentage Act in the U.S., which would provide states with model legislation for the expansion of surrogacy rights, and remove much of the court and state supervision of the procedure that is currently in place. This proposal has already been enacted in Washington and Vermont, and was introduced in Rhode Island.

Kathleen Gallagher, the New York Catholic Conference director of pro-life activities, told the Post that she found the New York proposal "appalling."

"This is the buying and selling of children and the exploitation of women. There are going to be poor women exploited by wealthy couples," she said.

The Catholic Church denounced the practice of surrogacy in the 1987 document Donum vitae, in which the Vatican stated that surrogacy "represents an objective failure to meet the obligations of maternal love," calling it a "detriment" to the family and the dignity of the human person by divorcing "physical, psychological and moral elements which constitutes those families."